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Punishment for Wilful Murder, Report 3 [1975] PGLawRComm 4 (1 October 1975)

LAW REFORM COMMISSION

PAPUA NEW GUINEA

REPORT ON PUNISHMENT FOR WILFUL MURDER

REPORT NO. 3

OCTOBER 1975

The Law Reform Commission of Papa New Guinea was established by the Law Reform Commission Act 1975 and began functioning in May 1975.

The Commissioners are

Bernard Narokobi, Chairman

Francis Iramu, Deputy Chairman

Charles Lepani

Meg Taylor

Nahau Rooney

Nicholas O'Neill is Secretary to the Commission.

The Commission's office is on the ground floor of the Development Bank Building in Waigani. The postal address of the Commission is:

Law Reform Commission

P.O. Wards Strip,

Papua New Guinea,

Telephone: 258755/258941

15th October 1975

The Honourable N. Ebia Olewale, M.P.,
Minister for Justice

Sir,

I n your reference to us on the criminal justice system you asked us, amongst other things, to report to you on sentencing and treatment of offenders.

We are submitting this report to you as a matter of urgency because we believe that mandatory life sentences for wilful murder as set out in Section 309(1) of the new Criminal Code soon to came into force will prove unjust in certain circumstances, as well as costly and ineffective.

Yours faithfully,

Bernard Narokobi, Chairman
Francis Iramu, Deputy Chairman
Charles Lepani
Meg Taylor
Nahau Rooney

--------------------------------------

SUMMARY

Whilst the crime of wilful murder is a particularly abhorrent one, most of those who commit it here are not people with criminal tendencies. Rather, they tend to be law-abiding citizens who, under intense cultural and social pressures, react violently and without premeditation or regard to the likely long-range consequences of their acts.

When the new Criminal Code is brought into effect the punishment for wilful murder will be mandatory life imprisonment. Because of Papua New Guinea conditions, however, its effectiveness as a deterrent for every wilful murder is highly questionable; in some situations the sentence will be clearly unjust.

We recommend that the proposed mandatory life sentence for wilful murder be repealed. Instead we propose that wilful murderers be liable to a sentence of life imprisonment and that judges be given a discretion to order lesser sentences in appropriate cases.

The form of sentence we recommend has a number of advantages over the mandatory life sentence:

- It distinguishes between the different circumstances under which wilful murders are committed;

- It allows for compensation payments and peace making negotiations to be taken into account when the judge gives the sentence;

- It avoids the inevitable increase in the cost of running the jails in our country that will occur if large numbers of people - approximately 100 each year - are sent to jail for life;

- It avoids the increase in the cost of the court system which will be caused by the need to have a full scale trial in each wilful murder case if the mandatory life sentence is introduced;

- It recognizes that the sentence review system in our country is unfortunately unsatisfactory; and

- It recognizes that if too lenient a sentence is sometimes given for wilful murder, the Public Prosecutor has the right to ask the Supreme Court to increase that sentence.

CHAPTER 1 PRESENT LAW - THE DEATH PENALTY

Under Section 305 of the separate Criminal Codes of Papua and New Guinea which are still in force, a person convicted of wilful murder may be sentenced to death. However, if the court finds that there were extenuating circumstances which would make the death penalty unjust, it may impose a life sentence or a lesser sentence.

There are two major problems involved with the present law. The first is that the death penalty has not been shown to be an effective deterrent against wilful murder. The second problem is that of defining "extenuating circumstances".

After considering the results of research, three Royal Commissions have concluded that there was no evidence to support the assertion that people will not kill others for fear of being executed by the government, A New Zealand study on the effect of the death penalty as a deterrent to potential killers showed that there was absolutely no correlation between the number of murders being committed and whether the death penalty was in abeyance or abolished or in force with executions actually taking place.

After hanging was stopped in Great Britain, Albert Pierrepint, who as Great Britain's official executioner hanged more than 100 people between 1931 and 1956 wrote –

"Hanging is said to be a deterrent. I cannot agree.

There have been murders since the beginning of time,

and we shall go on looking for deterrents until the end

of time. If death were a deterrent, I might be

expected to know. It is I who have faced them last,

young lads and girls, working men, grandmothers. I

have been amazed to see the courage with which they

take that walk into the unknown. It did not deter

them then, and it had not deterred them when they

committed what they were convicted for. All the men

and women whom I have faced at that final moment

convince me that in what I have done I have not

prevented a single murder."

The last time the death penalty was ordered in Papua New Guinea was in 1971, but the sentence was changed on appeal to life imprisonment. The case serves to illustrate the
difficulties involved with the concept of extenuating circumstances.

The pre-Independence Full Court of the Supreme Court was careful not to give a definite explanation of the concept -

"The concept, however, is certainly quite clear -

the existence of some relevant circumstances which

operate so as to diminish the culpability of the

prisoner, not in the strict legal sense but to all

the considerations which might reasonable be taken

into account in order to determine whether it

would not be just that the law should be applied in

its full rigour and the punishment of death

inflicted." Frost A.C.J- (as he then was) and Kelly,J. in R. -v-

Peter Ivom 6971-1978 PNG LR 374 a t 381.

We consider, however, that this shows the limitations of the concept. There may well be very good reasons for imposing a lesser sentence on a wilful murderer which are not extenuating in the sense of diminishing his culpability. For example, after a killing the clan of a wilful murderer may have negotiated a settlement with the dead man's clan and paid compensation. In such a situation a long sentence imposed by the court would upset the balance reached by this traditional method of restoring equilibrium.

In another case, whilst it may be clear to the court that a wilful murderer is fully responsible for his offence, the court may also have before it strong evidence that the accused is not in need of rehabilitation, that no purpose would be served by punishing him severely and that in every other way it would be perfectly safe to allow him to rejoin the community reasonably soon.

In these two situations a relatively short sentence for wilful murder would be appropriate but the cases may fall outside the limited discretion placed on the court by the use of the term "extenuating circumstances".

CHAPTER 2 THE NEW CRIMINAL CODE - MANDATORY LIFE SENTENCES

Papua New Guinea moved away from the death penalty in March 1974. At that time the House of Assembly refused to support a motion to make death the punishment for wilful murder. Instead, it passed Mr. Tei Abal's amendment to make mandatory life imprisonment the punishment for this offence. Later that year during debate on the new Criminal Code, the House again refused to support the death penalty as the punishment for wilful murder. Rather, it passed the amendment for mandatory life sentences
proposed by Mr. Stephen Tago. Section 309 of the Criminal Code thus reads –

"309. - PUNISHMENT FOR MURDER.

(1) Any person who commits the crime of wilful murder shall be sentenced to imprisonment for life. .

(2) Any person who commits the crime of murder shall be liable to imprisonment with hard labour for life."

The change should be taken to indicate that Papua New Guinea as a nation abhors killing. It also recognises the futility of capital punishment as a deterrent whilst, at the same time,
supporting strong sanctions against wilful murderers. In backing Mr. Tagols amendment Members of the House of Assembly debated the advantages and disadvantages of the death sentence and repeatedly stressed the need to punish murderers severely by requiring them to work hard whilst in jail. At no time during either debate, however, did Members discuss the disadvantages of the new mandatory life sentence.

CHAPTER 3 DISADVANTAGES OF MANDATORY LIFE SENTENCES

The major defect of the mandatory life sentence is that it fails to distinguish between the different situations in which wilful murders occur. Very few of the wilful murders in Papua New Guinea are examples of premeditated crime or cold-blooded apparently motiveless killings. Most can be explained in terms of cultural norms and pressures and the offenders and their clansmen may feel that the killings were justified. If a judge is required by law to impose a sentence of life imprisonment despite the attitudes of the people towards a particular offence there will be many instances where the sentence will be considered inappropriate and unacceptable i n the eyes of the people and the reputation of the courts and of the government will suffer because of this.

Many people who kill others for payback believe that they are doing right according to their customs. However, it is probably true that the great majority of our people and our country's leaders believe that this sort of killing should be punished severely.

On the other hand, where people regard a killing as morally right a light punishment may be more just and more acceptable to them. In the late 1960's for example, three men came upon a notorious sorcerer, a man who often spoke proudly of killing 29 people with his sorcery. He appeared to be working sorcery on the wife of one of the three men and they believed that once he reached his house and lit a fire and blew smoke in her direction she would die. They therefore chased him and killed him before he could do this. They then went and reported the murder to the government and waited for their trial. The people in the area treated them as heroes and public saviours and considered that their three year sentences they received were enough.

Many people feel that men who kill their unfaithful wives or wives who have insulted them about their lack of sexual prowess do not deserve to be sent to jail for life. A meeting of Highland leaders in Goroka in 1971 told the then Secretary for Law that such men should get "liklik kalabus tasol".

Another example of our people accepting a short sentence for wilful murder was the case of the woman who drowned her child. The child had a bad case of scabies and had cried for days. After trying in vain to get someone to help her bring the child to the aid post the mother, in desperation, threw it into the river. The people in her area regarded the very short sentence of six months imprisonment as just.

Mandatory life sentences also disregard the important traditional role that compensation plays in settling disputes in our country. If a compensation payment has been made and peace restored a life sentence may be regarded as unnecessarily long punishment. More than one wilful murderer in jail has complained to a Visiting Justice, "Why am I here? Why am I being punished? My line has already paid compensation."

If life sentences are imposed despite the payment of compensation clan leaders may be discouraged from initiating settlement negotiations and further violence can erupt. If the matter is considered closed by the clans involved and the wilful murderer is not likely to cause any further trouble a man who might otherwise lead a productive life will waste his time in jail and the government will waste its money detaining him unnecessarily. His wife and children will definitely suffer.

The mandatory life sentence for wilful murder may have bad and costly effects on our prison system. In the six years from 1969 to 1974, 678 people were convicted of wilful murder in Papua New Guinea. If the present conviction rate for wilful murder continues, in 10 years' time there will be more than 1,000 people in jail for life.

At present there are only 14 life detainees in our jails. Simply feeding, sheltering, clothing and guarding these people costs the government a lot of money. With the increased number of life detainees there will be additional costs for stronger security measures to contain and control them.

Whilst in most countries wilful murderers are amongst the best behaved prisoners, in Papua New Guinea they could begin to cause trouble when they become a substantial part of the prison population. Since a life sentence here means, in most cases, at least 15 years and often much longer, men, particularly young men, in jail for life may feel they have nothing to lose by disrupting prison life and constantly trying to escape.

Mandatory life sentences will also affect the courts. When a life sentence would be unjust in a wilful murder trial a judge may be forced by his better judgment to bend the law in order to return a verdict of murder and thus impose a lesser, but a more just sentence. The cost of the court system will be increased when the mandatory life sentence is brought into effect.

If a person convicted of wilful murder is automatically sent to prison for life his defence counsel, in carrying out his duty to do the best for his client, would have to make the government run a trial each time a person is charged with wilful murder in the hope that only murder or some other lesser charge will be proved against his client and a lesser sentence imposed.

Those who support the mandatory life sentence may argue that it is not, in fact, a sentence for life. Rather, it is an indeterminate sentence with set opportunities for an offender to secure his release once he can show political and executive authorities that he is rehabilitated.

This approach is based on the idea that crime is a disease which can be cured by spending an amount of time spent in prison. The amount of time this takes varies with each detainee. Under this system detainees have their sentences reviewed periodically to see whether they have been rehabilitated enough to be released. It disregards the fact that most wilful murders here are committed under strong social and cultural pressures and that many life detainees may need, at most, a period of rehabilitation that falls far short of the 15 years they must now spend in jail before they are entitled to a review of their sentences.

The fact that the sentence review system is not as thorough as it should be is also ignored. Our description of the present review procedures in Chapter 4 shows that they are cumbersome and inhumane. Even with the new review procedures set out in the Constitution it is unlikely that the system will improve because of the inevitable increase in the demands on the limited time of Ministers, public servants and other persons involved.

A final argument against this approach is that it goes against the basic legal principal of giving a man a sentence which is appropriate for his particular offence. If a man commits a serious offence he should be severely punished, but if his offence is less serious then his sentence should be proportionately less severe. It should be possible for him to be released before serving his entire sentence if he shows adequate rehabilitation. This should, in fact be the proper role of administrative release procedures to monitor a detainee's progress and determine whether he is ready for early release. But the maximum length of a man's sentence should be determined by a judge solely on the facts of the case and the surrounding circumstances, not by the political or executive authorities.

CHAPTER 4 THE REVIEW SYSTEM

The first way in which a detainee may be released before the end of his term comes under the Corrective Institutions Regulations and applies only to offenders in jail for life. Under regulation 142, a life detainee is interviewed by a Visiting Justice after he has served 12 years of his sentence. During this preliminary review the Visiting Justice must inquire into the conduct and health of the detainee during those 12 years. He then reports to the Reviewing Committee on the prisoner’s health and conduct, the extent to which he appears to have been rehabilitated, and on any other matters which seem relevant to a review of the detainee's sentence. There is no provision for the Reviewing Committee or for anyone else to take any action on the Visiting Justice's report.

After a life detainee has served 15 years in jail the Reviewing Committee is obliged to review his sentence, but it is not required to interview him or make any other relevant enquiries. To help in its review, however, the Committee may consider amongst other things, the report that the Visiting Justice made on the detainee three years previously.

Under regulation 143 the Reviewing Committee may make a recommendation for the release of a detainee on the basis of his health, age, conduct and the extent to which he appears to have been rehabilitated. If no such recommendation is made the Committee must review the detainee's sentence again within 5 years. All life detainees over 55 years of age must have their sentences reviewed annually by the Committee.

We believe that 15 years is too long for a person to serve before he is entitled to a review of his sentence. By then he is fully institutionalised, his family and clan relationships will have withered and his ability to cope with the vastly changed world outside the jail will be reduced. We also consider it a major defect of the Reviewing Committee that it is not empowered to take into account whether compensation has been paid for the detainee's offence and whether the local community considers the matter settled and that he has been punished enough.

Under the present Criminal Codes (and sections 627 of the new Criminal Code) the Minister for Justice has the power to release detainees on licence either with or without conditions. The Minister may revoke a licence at any time and the licensee may be arrested at any time by a policeman who suspects on reasonable grounds that he has breached a condition of his licence. If neither of these happens the released detainees remain on licence until the full period of their sentences expires: life detainees remain on licence for the rest of their lives.

The Minister for Justice has had this power only since Independence. Before that it resided in the High Commissioner. The power was rarely exercised and there was, and still is, no administrative machinery for considering long-term and life detainees for release on licence. Thus unless there is an individual public servant in the appropriate department to press for the exercise of this power no detainees are considered for release on licence.

We fear that the situation will not improve despite the establishment of the Advisory Committee on the Power of Mercy under the Constitution and the relevant organic law. The Advisory Committee is to be appointed by the Head of State acting on the advice of the National Executive Council. It shall consist of a lawyer, a medical practitioner with experience in psychiatry, a Member of Parliament, a minister of religion and a person with experience in social work. At least one of these must be a woman.

The Advisory Committee's constitutional function is to report to the National Executive Council on whether a convicted detainee should be given a pardon (either free or conditional) or whether his sentence should be shortened or changed or in some other way be made less severe. The National Executive Council must consider the report of the Committee before advising the Head of State on the sentence of a convicted detainee.

This very cumbersome procedure will take up some of the limited time of very busy people. We can foresee that with many other important problems to deal with, Ministers and the others involved simply will not have time to review the sentences of detainees except in very special cases. Furthermore, with the passing of time, eye witnesses die, evidence becomes vague and truth is harder to come by.

It is still too early to know how the Advisory Committee will operate, but it is important to note that no detainees will have the right to have his case considered. Unless a member of the Advisory Committee, the Minister for Justice himself or a member of his department actively brings cases forward for consideration nothing will be done and money that the government badly needs for other things could be wasted on maintaining detainees who could otherwise be leading productive and law abiding lives out of jail.

CHAPTER 5 RECOMMENDATION

After considering the many disadvantages of the mandatory life sentences and the unwieldy sentence review system we recommend that section 309(1) of the Criminal Code be repealed and replaced with the following -

"309. - PUNISHMENT FOR MURDER.

(1) Any person who commits the crime of wilful murder shall be liable to imprisonment with hard labour for life."

Criminologists and other people concerned about the sentencing and treatment of offenders have experimented with many different methods of imposing and reviewing sentences. From these experiments they have concluded that the fairest and most just system is for the judge who knows the facts of the case to punish each wilful murderer as he considers appropriate for the offence.

The change we recommend would allow judges to impose the sentences they consider appropriate for each particular case. They would, for example, be able to impose life sentences on those who commit payback murders and lesser, but just sentences on those who kill sorcerers or who kill their wives in situations of provocation which are outside the technical defence of provocation found in the Criminal Code. Our recommendation would also allow the National Court to take into account, when imposing its sentence, whether peace negotiations have taken place between the clan of the killer and the clan of the person killed, whether compensation has been or is about to be paid, and whether the people affected by the killing consider the matter settled.

To help the court make a f a i r evaluation of a case the Supreme Court Assessors Regulations have recently been brought into to force. These make it possible for the National Court when sitting in New Guinea to be advised by assessors. In wilful murder cases the assessors, who will be persons of good standing in the community and well versed in the customs and usages of the people in their areas, may be asked to give the local attitudes towards the killing and thus assist the court to impose a just and acceptable sentence. If the assessor system proves useful, moves will be made to extend it to the whole country.

It may be argued that our recommendation will lead to sentences which are far too lenient for the crime. In reply we draw attention to section 23 of the Supreme Court Act 1975 which allows the Public Prosecutor to appeal a sentence of the National Court which he considers too lenient and to ask the Supreme Court to increase that sentence. This power was used before Independence and there is no reason why it will not be used in the future.

If our primary recommendation is not accepted we ask that the following amendment for a sentence of life imprisonment but with a lesser penalty in extenuating circumstances be considered –

"309. - PUNISHMENT FOR MURDER.

(1) Subject to this section, any person who commits the crime of wilful murder shall be sentenced to imprisonment for life with or without hard labour.

(2) Any person who commits the crime of murder shall be liable to imprisonment with hard labour for life.

(3) If a Court finds that a person committed the crime of wilful murder, it shall thereupon consider whether there existed extenuating circumstances such that it would not be just to inflict the punishment of life imprisonment, and if it finds that those circumstances existed the Court may impose a sentence of imprisonment for such lesser term as the Court thinks just.

(4) Where the Court does not make a finding of extenuating circumstances within the meaning of the last preceding subsection, an appeal by the convicted person against the severity of sentence shall lie on the ground that such circumstances existed.

(5) The questions of whether extenuating circumstances exist and, if so, what weight is to be given to them are questions to be decided in the light of the facts of, and the circumstances of and surrounding each individual case."

Whilst this amendment would help to eliminate some of the disadvantages of the mandatory life sentence we consider that it would be much less appropriate than our primary recommendation because of the limiting effect of the tern "extenuating circumstances" which we discussed above.

Draft of

LAW REFORM COMMISSION
OF
PAPUA NEW GUINEA
A BILL
for
AN ACT
entitled
Criminal Code (Amendment) Act 1975,
being

An Act to amend the Criminal Code by varying the punishment for wilful murder,

MADE by the Parliament to come into operation in accordance with a notice published in the National Gazette by the Head of State, acting with and in accordance with, the advice of the Minister.

1. - PUNISHMENT FOR WILFUL MURDER (AMENDMENT OF SECTION 309)

Section 309 of the Principal Act is amended by omitting Subsection (1) and inserting in its place the following Subsection -

"(l) Any person who commits the crime of wilful murder shall be liable to imprisonment with hard labour for life."