N11517

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1444 OF 2022

THE STATE

v

SAMUEL SIKIN
(NO 2)

WABAG: ELLIS J
9, 10 OCTOBER 2025

CRIMINAL LAW – Wilful murder – Sentence after trial – Offender used words encouraging his brother to commit the offence – Single blow to the head with an axe – Brother, who entered a guilty plea, sentenced to 18 years IHL – Offender sentenced to 9 years IHL for his lesser role – Deterrence considered

Facts
The father of the offender handed an axe to his brother.  The father and the offender then used words encouraging the offender’s brother to attack the victim.  The offender’s brother killed the victim by striking him on the head with that axe.  The brother was sentenced to imprisonment for 18 years following a plea of guilty.  The father died in custody while on remand.  Following a trial, the offender was found guilty.

Held
Brother enter plea and was sentenced to 18 years.
The offender went to trial but played a lesser role.
Sentence of 9 years considered sufficient for punishment and deterrence.

Cases cited 
Golu v The State [1979] PGSC 9; [1979] PNGLR 653
Kovi v The State [2005] PGSC 34; SC789
Lawrence v The State [1994] PNGLR 38
Porewa Wani v The State [1979] PNGLR 593]
Public Prosecutor v Tardrew [1986] PGSC 10; [1986] PNGLR 91
R v Geddes (1936) 36 SR (NSW) 554
R v Home Manga (1970) N576
R v Pelosi (1973) N370
R v Sapulo Masuve (1973) N732
The State v John Badi Woli and Pengas Rokam [1978] PNGLR 51
The State v Nataemo Wanu [1977] PNGLR 152

Counsel
J. Kessan, for the State
L. Toke, for the defendant
		
SENTENCE

1.	ELLIS J: 	Samuel Sikin (the offender), of Pausa village in Wapenamanda, Enga Province was found guilty, following a trial, of a charge that, on the 7th May 2022 at Pausa, he wilfully murdered Junior Ambi.  That charge was based on s 299(1) of the Criminal Code Act 1974 (the CCA), being an offence which carries a maximum penalty of imprisonment for life.

Overview 

2.	During a bride price ceremony, the offender’s father (Sikin Wapea) handed an axe to the offender’s brother (Ben Sikin).  After the axe was handed to Ben Sikin, his father and the offender encouraged him to use that axe to strike Junior Ambi (the victim), which Ben Sikin did, and the resulting blow to the head caused the death of the victim.

3.	Ben Sikin, the offender’s younger brother, pleaded guilty and was sentenced to imprisonment for 18 years.  Sikin Wapea, the offender’s father, died whilst on remand in custody.  The Court considered a sentence of imprisonment for 9 years should be imposed on this offender, having regard to (1) the circumstances of the offence, (2) the circumstances of the offender, (3) the role played by the offender,  (4) the sentence imposed on the co-offender, and (5) the need for specific and general deterrence.

Circumstances of the offence

4.	In the reasons given for the verdict, the following findings of facts were made:

(1)	Pastor Newman Ikis, Alo Pando and John Pyakea are each related to the offender.
(2)	Between 6pm and 7pm on 7 May 2022, in a field at Pausa village, there was a bride-price ceremony which involved pig-killing and the distribution of pork meat.
(3)	As that was the bride price for Kevin Ambi, his younger brother (Junior Ambi) was also present.
(4)	Other people present included Pastor Newman Ikis, Alo Pando and John Pyakea.
(5)	The offender, his brother (Ben Sikin), and their father (Sikin Wapea) were also present at that time.
(6)	When a fight erupted between Ben Sikin and Junior Ambi, Sikin Wapea gave Ben Sikin an axe.
(7)	At that time Ben Sikin was under the influence of liquor. 
(8)	When Junior Ambi was able to get hold of that axe, he obeyed Sikin Wapea’s request to give the axe back, and it was returned to Sikin Wapea.
(9)	From then on, Junior Ambi was not holding any weapon.
(10)	Sikin Wapea then gave that axe to Ben Sikin.
(11)	Ben Sikin took that axe and went to attack Junior Ambi.
(12)	At that time, the offender said words to the effect: “attack him more”.
(13)	The offender thereby aided the commission of the offence by counselling Ben Sikin to strike Junior Ambi with that axe.
(14)	At that time, Sikin Wapea and Ben Sikin and the offender had a common purpose of attacking Junior Ambi with an axe.
(15)	Ben Sikin used that axe to strike Junior Ambi on the left side of the head, above the eyebrow.
(16)	Using an axe to strike the body of another person establishes an intention to kill that person.
(17)	Using an axe to strike another person on the left side of the head, above the eyebrow, establishes an intention to kill that person.
(18)	As a result of that use of the axe, Junior Ambi died.

Circumstances of the offender

5.	During submissions for the offender, it was said that he is aged 52, with four children.  His father died in 2023, while in custody awaiting his trial.  His mother is alive but elderly.  The offender is the eldest of three children, his brother Ben being the second-born child. A subsistence farmer who dropped out of school after grade 10, the offender was said to be of the Christian Apostolic Fellowship faith.  

Allocutus

6.	When provided with an opportunity to address the Court, the offender said:

The deceased person only received one cut, and I did not punish him.  At the time I was not armed with a bush knife or axe or any other weapon.  The burden cannot be placed on me.  In the eyes of God and in the eye of this Court and the public, what I am saying is the truth. I have been in custody for a long time, without any good reason, so I am asking this court to have leniency on me.  That’s all.

Evidence

7.	During the sentence hearing, no documents were tendered, and no oral evidence was led by either party.

Submissions for the offender

8.	The Court was advised that the offender’s younger brother (Ben Sikin) entered a plea of guilty and was sentenced to imprisonment for 18 years.  By reference to Kovi v The State [2005] PGSC 34; SC789 (Kovi), it was submitted that this case fell within category 2, for which the suggested range was imprisonment for between 20 and 30 years.  As to the conduct of the offender, it was suggested that, although he “cheered on” his brother, there was no evidence of motive and that the offender took no active steps in the commission of the offence.  A submission was made that the offender’s penalty should be less because he did not participate actively.  It was contended that the sentence in this case should be at the low end of the range for what Kovi described as category two, namely 20 years, less 3 years and 5 months which the offender was said to have already spent in custody.

Submissions for the State

9.	First, it was observed that the offence of wilful murder commonly led to stiff sentences due to the prevalence of that offence.  Secondly, it was noted that this case involved a serious injury, being an axe wound to the head of a victim.  Thirdly, it was submitted that, since this was a contested case, the offender was not entitled to leniency, as is commonly the case when an accused person enters a plea of guilty, as did the offender’s brother.

10.	It was noted that (1) the maximum penalty for this charge was imprisonment for life, (2) this case satisfied the criteria set out in Kovi for category two, and (3) there were some aspects of this case that fell within category three.  The Court was reminded that the victim was unarmed.  The suggested range was said to be from 20 to 30 years.  It was noted that the offender’s brother had already been sentenced to 18 years’ imprisonment, which was said to be the starting point.  As with the submissions for the offender, the question of whether any portion of the sentence should be suspended was left for the discretion of the Court.

Relevant law

11.	At the risk of stating the obvious, the sentence must fit the crime committed (Golu v The State [1979] PGSC 9; [1979] PNGLR 653) and each case must be determined on its own facts (Lawrence v The State [1994] PNGLR 38).

12.	Neither lawyer referred the Court to any other, comparable cases that might provide guidance for sentencing purposes, and the Court has been unable to find any such cases, that search being hampered by internet outages and power failures.

13.	There are other cases in which a conviction for similar conduct has been considered, namely R v Pelosi (1973) N370, R v Sapulo Masuve (1973) N732, The State v John Badi Woli and Pengas Rokam [1978] PNGLR 51, R v Home Manga (1970) N576, The State v Nataemo Wanu [1977] PNGLR 152, and Porewa Wani v The State [1979] PNGLR 593.  However, the sentences imposed in those cases are not available.  Even if such sentences were available, since those cases were decided between 46 and 55 years ago, those sentences would be of little assistance.

14.	In cases such as this, where little guidance is available, the words of Sir Frederick Jordan, when he was Chief Justice of the New South Wales Supreme Court, in R v Geddes (1936) 36 SR (NSW) 554 at 555-556, are worth quoting (emphasis added):

“… In the nature of things there is no precise measure, except in the few cases where the law prescribes one penalty only.  In all others, the judge must, of necessity, be guided by the facts provided in evidence in the particular case.  The maximum penalty may, in some cases, afford slight assistance, as providing some guidance as to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none.  The function of the criminal law being the protection of the community from crime, the judge should impose  such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such crime committed in such circumstances, and to be likely to be sufficient deterrent both to the prisoner and others.  When the facts are such as to incline the judge to leniency, the prisoner’s record may be a strong factor in inducing him to act, or not to act, upon his inclination.  Considerations as broad as these are, however, of little of no value in any given case.  It is obviously a class of problem in solving which is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule”.

15.	In this case, the Court can do no more than set out the principles which have been considered and applied, for the sake of transparency, which may assist other judges who encounter an unusual situation such as that presented by this case.

16.	It is noted that, in the CCA, there is a specific offence of “Urging, etc unlawful killing” found in s 308 for which the maximum penalty is imprisonment for seven years.  The wording of that section is set out, in full, below:

(1)	A person who –
(a)	incites, encourages, urges, counsels or commends the unlawful killing of another person; or
(b)	does or omits to do any act for the purpose of facilitating, enabling or assisting the unlawful killing of another
(c)	person
is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2)	For the purposes of Subsection (1), it is immaterial that –
(a)	no specific person was incited, encouraged, urged, counselled, commanded, enabled or assisted to kill; or
(b)	the killing of no specific person was incited, encouraged, urged, counselled, commanded, facilitated, enabled or assisted; or
(c)	no person was in fact killed.

Consideration

17.	Five factors are considered relevant to determining what is the appropriate sentence in this case:

(1)	the circumstances of the offence (ie objective factors),
(2)	the circumstances of the offender (ie subjective factors),
(3)	the role played by the offender in the crime that was committed,
(4)	the sentence imposed on the co-offender (ie the brother of the offender), and
(5)	the need for specific and general deterrence.  

18.	The circumstances of the offence are summarised in the findings of fact set out above (at [4]).

19.	The circumstances of the offender are also set out above (at [5]).

20.	The role played by the offender was, together with his father, akin to that of a cheer squad, although his father’s role was greater because he provided the axe.

21.	The sentence imposed on the offender’s brother was 18 years, after a plea.  (It is convenient to here note that his plea serves to confirm, with the benefit of hindsight, the decision not to accept the evidence given during the trial by the mother of the accused.)  That sentence of 18 years suggests a starting point around the middle of the range for cases falling with what Kovi described as category 2 was used, with a discount for the plea.  

22.	Despite the brother having been sentenced after a plea and this offender being sentenced after a trial, a sentence higher than that of the brother cannot be justified when the role of the offender was significantly less.  

23.	While the effect of the provisions of the CCA in this case is that the offender is deemed to have committed the same offence as his brother, it does not necessarily follow that he should be given the same punishment when his role was clearly inferior.  It is noted that Kovi is a guideline judgement, from which departures can be made if the circumstances warrant such a departure.

24.	As to the need for specific deterrence, being deterrence that will cause the offender not to engage in similar conduct in future, the Court is satisfied that the offender already has learnt or, as a result of today’s sentence, will learn that lesson.  A sentence of or approaching the 18-year sentence imposed on his brother would be manifestly beyond what is necessary to deter this offender from similar conduct in future.

25.	Since this nation already has bulging prisons, with an increasing number of prisoners, it does not make sense to impose sentences that are any longer than what is reasonably necessary to achieve the twin goals of specific and general deterrence. 

26.	So far as general deterrence is concerned, it cannot be doubted that many members of the public will be surprised that a person can be sentenced to prison not for committing a crime but for encouraging a crime to be committed.

27.	The sentence imposed in this case should serve as a warning to others that, if they aid or even encourage criminal conduct, in situations such as when an argument starts or in the context of tribal fighting, they can be found guilty as if they carried out that crime themselves.  While the punishment may be less than if they committed the crime, this case demonstrates that a significant term of imprisonment may result if anyone even encourages the commission of a crime.  It is noted that, for Enga people, even the prospect of going to prison is a deterrent.

28.	In this case, there are many things the offender could and should have done instead of calling out words of encouragement, including that:

(1)	he could have tried to prevent his father from giving the axe to his brother,
(2)	he should have realised that his younger brother’s judgement was impaired because he was under the influence of liquor, and
(3)	he could and should have tried to stop his younger brother from using that axe.  

29.	In short, this is a case where the offender should have sought to calm the situation and not inflame it with words of encouragement.

30.	The circumstances of this case were yet another instance where an argument over a minor matter got out of hand and resulted in the death of a person.  What is needed in this Province and in this Nation is more people who will take steps to prevent such situations causing loss of life and not people who encourage conduct that results in loss of life.

31.	Based on the five factors outlined above, the Court considers this offender should be sentenced to imprisonment for 9 years with the time he has already spent in custody being deducted from that term.

32.	It is noted that a consideration of whether the Court should suspend a portion of the sentence should only be done after the Court has decided on the appropriate sentence.  While s 19(6) of the CCA provides the power to suspend part of a sentence of imprisonment, having regard to the principles in Public Prosecutor v Tardrew [1986] PGSC 10; [1986] PNGLR 91, the Court does not consider any portion of the sentence should be suspended.

Sentence

33.	For those reasons, the Court considers a sentence of imprisonment for hard labour for 9 years should be imposed.  Deducting the period which the offender has spent in custody of 3 years and 5 months gives a period remaining to be served of 5 years and 7 months.

Ordered Accordingly.
__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the defendant: Public Solicitor