SC2808

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO. 43 OF 2023

BENJAMIN BOJIM SEIWA
 Applicant

AND 
THE STATE
Respondent

WEWAK: BERRIGAN J, NUMAPO J, PURDON-SULLY J
29, 31 OCTOBER 2025

APPLICATION FOR REVIEW - OF SENTENCE FOR MURDER – S 300(1)(a), Criminal Code – Vicious attack, with a bush knife, to a defenceless man, motivated by suspicions of infidelity on the part of the applicant’s wife– Application for review of sentence of 22 years of imprisonment dismissed.   

Cases cited
William Norris v The State [1979] PNGLR 605
Yalibakut v The State (2006) SC890 
Public Prosecutor v Tom Ake [1978] PNGLR 469 
Manu Kovi v The State (2005) SC789
The State v Peter Tokau (2008) N5462
The State v David Daniel (No 2) (2005) N2890 
The State v Kapi Korop (2016) N6336
Kumbamong v The State (2008) SC1017 
Guina v The State (2023) SC2409 
State v Papi (2021) N9435 
State v Nola (2024) N10662 
Avia Aihi v The State [1981] PNGLR 81

Counsel
F Kirriwom with A Kana for the applicant  
A Kaipu with L Jack for the respondent State

DECISION

1.	BY THE COURT: The applicant pleaded guilty to the murder of Richard Mage on 22 March 2020, contrary to s 300(1)(a) of the Criminal Code. He applies to have his sentence of 22 years of imprisonment reviewed.  

2.	Between 8 and 9 am on the morning of 22 March 2020 the deceased was sitting at the beach at Koblik village, Vokeo Island, East Sepik Province when the applicant’s wife left her house to buy baked cassava. While she was trying to buy cassava the offender, who had followed her out of jealous thoughts that she was having an affair with the deceased, called her to return to the house, uttering words to the effect “yu lukim man ya na kam sindaun lo hap ah (you saw that man so you have come and are sitting over there). In a rage the offender went to his house. He got a bush knife and went to the beach where the deceased was still sitting and cut the deceased several times to different parts of his body. The deceased was taken by surprise and could not defend himself. The applicant fled into the bushes after some villagers intervened and stopped him. The deceased died the same day from the injuries inflicted. 

3.	The applicant failed to file his appeal within time but was granted leave to apply to review his sentence on the grounds that the sentencing judge erred by: a) not giving sufficient weight to the de facto provocation of the deceased having an extra marital affair with the applicant’s spouse; b) not giving sufficient weight to the applicant’s assertion that he reported the deceased and his wife to the village court; and c) relying on case law that was not relevant to the applicant’s case. He contends furthermore that his sentence is manifestly excessive.

4.	It is well established that the Supreme Court will not readily disturb the discretionary power of a sentencing judge. For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence. Such an error may be identifiable: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where it is obviously, but not merely arguably, out of all reasonable proportion to the circumstances of the case: William Norris v The State [1979] PNGLR 605 at 612 to 613.

Grounds a) and b)

5.	We shall deal with these grounds together.

6.	The applicant has failed to demonstrate that the sentencing judge failed to give sufficient weight to the de facto provocation present as a result of the deceased having an extra-marital affair with his wife or that the sentencing judge failed to give sufficient weight to the applicant’s assertion that he had reported the deceased and his wife to the village court. 

7.	The applicant relies on the case of Yalibakut v The State (2006) SC890 on the basis that the applicant should have been given the benefit of any reasonable doubt on the contentious issue of the affair and on his reports to the village court.

8.	Certainly the agreed facts on arraignment could have been clearer. On their face they do assert that the applicant acted on some previously held suspicions about his wife and the deceased, that he followed her out of the house as a result of those suspicions, and that he responded in a rage when he saw the deceased at the beach. 

9.	The alleged facts did not, however, give rise to the accused’s version that there was a long running affair or that the applicant had reported the matter to the village court which had ordered the deceased and the applicant’s wife to cease their affair or pay compensation to the applicant. Those were matters he raised in allocutus and in his record of interview. 

10.	The sentencing judge considered that they were of limited weight as there was no other material in support of the assertions on the depositions or in the pre-sentence material.  

11.	At the same time, the sentencing judge also exercised some caution with respect to the statements by the local village court magistrate that the applicant was a suspicious person who had been suspicious of his wife for many years, that this had resulted in numerous mediations at which the offender had been told to change his ways but never did, that the allegations of sexual contact were not true, and that the offender had been jealous for no reason. The sentencing judge took this approach on the basis that other statements by the magistrate raised questions about his fairness and reliability.

12.	Ultimately, the sentencing judge gave the applicant’s assertions some, albeit limited, weight. Furthermore, he did accept and take into account in the applicant’s favour that the applicant had “attempted to have his concerns resolved in a proper village forum before resorting to self-help”. 

13.	The applicant has failed to demonstrate any error in the circumstances.

14.	Moreover, whilst the killing occurred in the village context, the weight to be given to any de facto provocation arising from the applicant’s suspicions was a matter to be considered in the circumstances of the offence taken as a whole, matters which we will return to below. 

15.	The grounds are dismissed.

Ground c

16.	We reject the submission that the sentencing judge relied on case law that was irrelevant.

17.	This was a serious case concerning murder, one of the most serious offences known to the Criminal Code, and yet neither counsel assisted the sentencing judge with any comparative case authorities other than Manu Kovi v The State (2005) SC789. Notably both counsel submitted in this regard that the starting point was category 3 of Manu Kovi, which attracts a range of 20 to 30 years of imprisonment, albeit the applicant sought a sentence of 17 years of imprisonment, with some suspension. 

18.	The sentencing judge referred to three cases in his decision: The State v Peter Tokau (2008) N5462; The State v David Daniel (No 2) (2005) N2890; and The State v Kapi Korop (2016) N6336. 

19.	Like this case, the first two concerned murder in the context of disharmony, frustration or suspicion on the part of the offender. Sentences of 22 and 25 years were imposed, respectively. 

20.	In Tokau the offender, under the influence of alcohol, frustrated and angry that his wife had gone with their child to stay with her parents, walked in the early hours of the day to his in-law’s house armed with a bush knife. His shouts drew his wife and her parents to come outside. The offender’s wife was standing behind her father for protection. The offender insulted his wife, punched her father to the ground and stabbed him three times. 

21.	In Daniel the offender, during a period of marital disharmony, suspected his wife of having an affair with another man. He tried to sort the problem out by peaceful means but on the night of the incident he argued with his wife and she left the house. The next day he followed her to the beach, lay in wait and stabbed her eight times as she left the toilet. 

22.	The purpose of Korop was clearly to provide some contrast. In that case a sentence of 25 years was imposed on a prisoner who, whilst under attack, chased after and fired on the victim with a high-powered weapon. 

23.	In addition, the sentencing judge went on to explain in his decision how the cases were relevant to the present case and applied Daniel in the applicant’s favour by comparison.

24.	This ground is also dismissed.

Manifestly excessive

25.	We are not persuaded that any of the cases referred to by the applicant demonstrate that the sentencing judge’s sentence is manifestly excessive.

26.	Kumbamong v The State (2008) SC1017 bears very little resemblance to this case. The offender went looking for her husband at the deceased’s house, where she found him. The deceased was the offender’s second wife or girlfriend. Upon proposing that the deceased come and live with her and her children in her own home so that their husband could look after all of them under the one roof the deceased verbally insulted the offender and then armed herself with a knife and started to attack the offender. On realizing she had no way of escaping, the offender wrestled the knife from the deceased and stabbed the deceased on her head and back many times causing her to collapse and die. Whilst not disturbing the head sentence of nine years, the Supreme Court suspended the balance of 6 years, 11 months still to be served.  

27.	Similarly, in Guina v The State (2023) SC2409 the applicant had suffered years of emotional abuse at the hands of her husband. On the day in question she went looking for her husband and her son. She was worried about the welfare of her sick son and found him outside the house of a woman she knew her husband was having an affair with. Her anger increased when she came upon him having sex with his mistress, who then attacked her with a knife, which the offender managed to get hold of before stabbing the victim once in the leg. Whilst the sentencing judge failed to give sufficient weight to certain factors, the Supreme Court nevertheless confirmed a head sentence of 12 years, suspending three years of it on conditions. 

28.	The applicant also refers to two National Court cases in which sentences of 20 years of imprisonment were imposed: State v Papi (2021) N9435 in which the offender stabbed the deceased whom she suspected of having an affair with her boyfriend three times upon seeing her in the street; and State v Nola (2024) N10662 where the offender stabbed his partner repeatedly to her neck and face after seeing her with another male on the street.  Those cases are of some relevance from a comparative point of view but they were not binding on the sentencing judge and are not determinative of what sentence should have been imposed in this case. 

29.	It must also be said that those cases, amongst others, demonstrate that homicide driven by suspicion and jealousy is far too prevalent. As the Court has made clear many times such offences must be dealt with severely.  

30.	Critically, the applicant must establish that his sentence is obviously, and not merely arguably, out of all reasonable proportion to the circumstances of the case.  

31.	This was a brutal crime. The appellant became enraged upon seeing the deceased. He deliberately returned to his home and retrieved a bush knife before attacking the deceased who was sitting unarmed and defenceless on the beach. The extent of the injuries inflicted by the applicant is apparent from the medical report showing several deep wounds including a 15 cm deep by 9-10 cm wide injury on the left shoulder, a severing of the left sub-clavian artery and fracturing of the first rib bone, two other wounds on the left chest measuring 10 to 15 cm each by 1 to 2 cm deep, and a further wound of 3 to 4 cms in depth. 

32.	In the circumstances the sentencing judge properly identified that this case fell in the upper end of category two and more correctly, in our view, the lower end of category three of Manu Kovi for the reasons given by him, namely that it involved the use of an offensive weapon, the presence of a strong desire to cause grievous bodily harm, and a vicious assault in circumstances where multiple blows were wielded on an unsuspecting victim. We would add here that there was also some aspect of planning to the extent that the applicant went to his home and retrieved a bush knife.

33.	Considering that the maximum penalty for murder is life, and having regard to the tariffs suggested in Manu Kovi, the comparative cases, and noting  the aggravating circumstances of this case, the limited matters in mitigation and the wide discretion of the sentencing judge, the appellant has failed to demonstrate that the sentence imposed is out of all reasonable proportion to the crime committed.

34.	Accordingly, we are not satisfied that there are cogent and convincing reasons and exceptional circumstances such that some substantial injustice is manifest or that there are clear legal grounds meriting a review of the decision: Mark Bob v The State (2005) SC 808 applying Avia Aihi v The State [1981] PNGLR 81; Danny Sunu v The State [1984] PNGLR 305. 

35.	We make the following orders:

(1)	The application for review is dismissed.
(2)	The sentence of 22 years of imprisonment imposed by the National Court is confirmed. 
________________________________________________________________
Lawyer for the appellant: Public Solicitor	
Lawyer for the respondent: Public Prosecutor