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Kianga v The State [2025] PGSC 118; SC2815 (26 November 2025)

SC2815

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO. 18 OF 2025

WESLEY STEVEN KIANGA
Appellant

-V-

THE STATE
Respondent

WEWAK: KARIKO J, NAROKOBI J, DOWA J
24, 26 NOVEMBER 2025

CRIMINAL LAW – appeal against sentence – s 22(d) Supreme Court Act – murder, s 300(1)(a) Criminal Code – whether any or sufficient weight given to mitigating factors – whether sentence a quantum leap – whether sentence manifestly excessive

The appellant was convicted of murder pursuant to s. 300(1) (a) Criminal Code, upon pleading guilty to the charge, and he was sentenced to 50 years imprisonment in hard labour less pre-sentence period in custody. With leave, he appealed the sentence pursuant to s 22(d) Supreme Court Act.

Held

1. The trial judge erred by not giving any or sufficient weight to the mitigating factors.
2. The sentence imposed was a quantum leap having regard to the sentencing tariffs guidelines and prevailing comparative sentences.
3. The sentence imposed by the trial judge was and is manifestly excessive.
4. Appeal upheld. Sentence reduced.
   

Cases cited
Ben Wafia v The State (2006) SC851
Henry The State (2020) SC2603
Isaiah v v The State (2022) SC2264
Manu Koivi v The State (2005) SC789
State v Kianga (2025) N11254
State v Robin (2021) N9022
State v Akulje (2024) N10804
State v Sotno (2025) N11520
Thress Kumbamong v The State (2008) SC1017
Waim v The State (1997) SC519

Counsel
C Namono, for the appellant
L Jack, for the respondent

1. BY THE COURT: This is an appeal against sentence that arises from the conviction of the appellant by the National Court at Wewak of the murder of his wife Benita Gilbert contrary to s 300(1)(a) of the Criminal Code.
   
2. He pleaded guilty to the charge, and he was sentenced to 50 years imprisonment in hard labour less the pre-sentence period in custody. See State v Kianga (2025) N11254.
   

FACTS

3. The brief facts upon which the appellant was arraigned are these.
   
4. The appellant and the deceased were a married couple.
   
5. Following a domestic dispute, the deceased left the appellant in their village at Angoram on 13 January 2024 and came to Wewak.
   
6. The appellant later followed to Wewak in search of his wife.
   
7. On 13 February 2024 he located her at the Dagua Commercial Centre.
   
8. An argument arose between the couple during which the appellant stabbed his wife three times in the abdomen and then slashed at the back of her neck with a bush knife causing serious wounds which caused her instant death.
   

THE APPEAL

9. Leave to appeal the sentence as required by s 22(d) of the Supreme Court Act was duly applied for and was granted on 24 July 2025.
   
10. The notice of appeal was then filed challenging the sentence on these grounds:
    
    1. That the sentence was and is manifestly excessive;
    2. That the sentencing judge erred in placing little or no weight on the appellant’s mitigating factors;
    3. That the sentencing judge erred in placing little or no weight on the submissions of counsel regarding the range of imprisonment terms as appropriate sentences.
       

SUBMISSIONS

11. Mr Namono for the appellant submitted that in the sentencing remarks, the sentencing judge did not make any reference to how his Honour treated or regarded the mitigating factors that he noted earlier in his decision.
    
12. Counsel also stressed that the submissions in the National Court referred to a number of comparative cases on sentences for murder and the sentencing tariffs for murder as set out in Manu Koivi v The State (2005) SC789 and put to the Court the range of sentences to consider imposing, while proposing that the present case fell into Category 3 of the tariffs. Mr Namono added that while the submissions were noted by the trial judge, they were neither referred to nor discussed in his Honour’s discussion of the sentence to impose.
    
13. By his Honour disregarding or placing little weight on the mitigating factors and the comparative sentences with reference to the Manu Koivi tariffs, counsel argued that the sentence imposed was and is manifestly excessive.
    
14. Ms Jack of counsel for the State conceded to the grounds of appeal and the submissions for the appellant and referred the Court to some other comparative sentencing cases not mentioned in the National Court which she said supported the assertion that the sentence was and is manifestly excessive.
    

CONSIDERATION

15. In respect to an appeal against sentence, the legal principles are well settled. In Ben Wafia v The State (2006) SC851 the Supreme Court stated:
    

A sentencing judge has a wide discretion. On an appeal against sentence the appellant must show that the sentencing judge has erred in the exercise of his discretion. Although there may be no identifiable error, if the sentence is out of all reasonable proportion to the crime there is an unidentifiable error: William Norris v The State [1979] PNGLR 605.

16. In the matter before us, the trial judge noted the aggravating and mitigating factors as follows:
    

Aggravating Factors

5. The circumstances of aggravation in relation to this offence are as follows:

1. Loss of life;

2. Unprovoked assault;

3. Killing of innocent and harmless person;

4. Prior conviction;

5. Use of Dangerous weapon;

6. Some element of pre-planning.

Mitigating Factors

6. The mitigating factors are as follows:

1. He co-operated with police;
2. Guilty plea thus reducing court time;
3. Gave a background as to why he committed the crime.
   
17. After summarizing submissions of counsel, the trial judge discussed and considered the appropriate sentence in this way:

9. The Court may examine applicable sentences available under the sentencing tariffs in the case of Manu Kovi v The State [2005] SC789. In my review of these tariffs and considering how to exercise my discretion in line with Section 19 of the Criminal Code I am to make a determination that also complies with the interest of justice. I remind myself that there is a victim and the rights afforded to that victim have been extinguished by this taking of life. It has been stated that maximum punishments are more appropriate for the worst types of case as in Goli Golu v The State [1979] PNGLR 653. This killing approaches the description of what a reasonable person would aver is heinous but may not necessarily be the worst of the worst.

10. In Thress Kumbamong v The State [2008] SC1017, it is clear that the trial judge has the discretion in imposition of a sentence. It is appropriate for a long sentence to be imposed given the facts of this situation. The prisoner demonstrated behaviour that informs the Court that he is a danger to society. The actions of domestic violence is too common in Papua New Guinea and the death of a partner has become the result. Under the circumstances a head sentence of 50 years is appropriate.

18. The reasoning does not disclose if and to what extent the trial judge took into account the mitigating factors, particularly the co-operation with police and the guilty plea. We find therefore that little or no weight was given to these matters, and we find this to be an error in the trial judge’s exercise of his sentencing discretion.
    
19. It is also plain to us that the trial judge did not consider it relevant to apply the tariffs proposed by Manu Kovi nor did his Honour consider the comparative sentencing cases cited by counsel.
    
20. Furthermore, his Honour relied principally on the established legal principle that sentencing is a discretionary power of the Court to decide that the heinous nature of the killing in the present case warranted punishment of 50 years imprisonment.
    
21. In so doing, his Honour cited the case of Thress Kumbamong v The State (2008) SC1017. We believe his Honour may have been relying on the view expressed by the Supreme Court (Salika J, Kandakasi J and Yagi J) several times in the judgement including at [72]:
    

Now turning to the case at hand, we note the learned trial Judge referred to the cases of Manu Kovi v. The State [23] and Anna Max Maringi v. The State [24] as precedents to arrive at his decision to impose the sentence of 9 years. To the extent that these two decisions further categorize and prescribe minimum and maximum sentences within the already prescribed maximum sentences, we are of the respectful view that, they are an unnecessary and illegal curtailment or fettering and or restriction of the discretion vested in a trial judge. We are thus of the view that, no trial judge should feel compelled or bound to follow these prescriptions. Instead, they should exercise the wide discretion vested in them in the way they see fit as long as they take into account all of the relevant factors and the particular circumstances in which the offence under consideration was committed and the sentence they eventually arrive at, sufficiently reflects the factors taken into account and the particular circumstances in which the offence under consideration was committed.
(Emphasis added)

22. We acknowledge that sentencing is a discretionary exercise of power by the Court, but we respectfully disagree that sentencing tariffs are “an unnecessary and illegal curtailment or fettering and or restriction of the discretion”, and we think the observations of the Supreme Court (Injia DCJ, Lenalia J, Lay J) in Manu Kovi regarding tariffs are to be preferred:
    

In homicide cases, as with any other offences, the use of a tariff though has its limitations, because the determination of appropriate punishment in each case, is an exercise of discretion, having regard to the seriousness of the offence, the gravity or otherwise of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the community in ensuring the punishment achieves its purposes. As the Supreme Court said in Lawrence Simbe v The State ²:

"We say that it is not a matter of a tariff for particular types of murder but, rather, that each case must be decided on its own facts, bearing in mind the various factors that are involved in each case, the gravity of the attack, and the concern of the Court at people who take the law into their own hands".

However sentencing tariffs provide a useful guide in the exercise of sentencing discretion in particular types of cases and Courts must be encouraged to develop them. In developing tariffs, Courts must bear in mind that it is not a mathematical exercise involving technical classification of some broad circumstances of the offence and then fixing a mathematical figure besides them. It is an exercise of judicial discretion and care must be taken to develop them for the future use of Courts.
(Emphasis added)

23. It is noteworthy that since Kumbamong, both the National and Supreme Court have continued to refer to and apply the tariffs contained in Manu Kovi as sentencing guidelines. See some recent cases: State v Robin (2021) N9022 per Berrigan J, State v Akulje (2024) N10804 per Polume Kiele J, State v Sotno (2025) N11520 per Kangwia J and Henry The State (2020) SC2603 (Hartshorn J, Makail J, Kassman J), Isaiah v The State (2022) SC2264 (Berrigan J, Miviri J, Dowa J).
    
24. We note the various comparative sentencing cases referred to us by counsel show sentences for murder ranging from 13 years to 25 years imprisonment where the accused pleaded guilty to killings in domestic settings. We were also referred to the case of State v Tanabo (2015) N6083 where life imprisonment was imposed. However, that case was determined by the trial judge to be of the worst kind of murders and falling into category 4 of the Manu Kovi tariffs.
    
25. We accept that the present case falls into category 3 of range of sentences suggested in Manu Kovi but we consider that the appropriate sentence in the present case should be at the high end of the range. The tariffs proposed in Manu Kovi for murder are:
    

26. As Manu Kovi was decided nearly 20 years ago, we think the upper limit warrants an increase given that serious homicide cases continue to be on a constant increase and are quite prevalent throughout the country.
    
27. That notwithstanding, we take heed of the advisory remarks of the Supreme Court (Kapi DCJ, Andrew J, Sakora J) in Waim v The State (1997) SC519 when considering a sentence of 25 years for rape, that the sentence:
    

..was a “quantum leap” under the circumstances. A progressive increase in sentencing for particular offences is reasonable and justified, depending on the particular circumstances of each case. But a sentence that constitutes a huge jump or increase from the prevailing practices ought not be imposed.
(Emphasis added)

28. With due respect, we find the trial judge erred in the exercise of his sentencing discretion by imposing a sentence which we consider was a quantum leap in the circumstances.
    
29. When proper regard is had to the helpful comparative sentences submitted by counsel together with the sentencing tariffs as discussed above, it is our respectful view that the sentence of 50 years imposed by the National Court was and is manifestly excessive and should be set aside.
    
30. Instead, we consider that a head sentence of 35 years imprisonment is justified but we reduce that to 33 years taking into account the mitigating factors – co-operation with the police and the guilty plea. We further exercise our discretion to deduct the pre-sentence period spent in custody (1 year 2 months 10 days). The resultant sentence imposed is 31 years 9 months 20 days commencing 23 April 2025.
    

ORDER

(1) We uphold the appeal.
(2) The sentence imposed upon the appellant by the National Court at Wewak on 23 April 2025 is quashed and is replaced by a term of imprisonment of 33 years in hard labour, reduced by 1 year 2 months 10 days pre-sentence period in custody.
(3) A fresh warrant of commitment reflecting the new sentence will be issued accordingly.

____________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondent: Public Prosecutor