Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985)

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CRIMINAL LAW - Sentences - Mitigating factors - Murder - Wounding - Deprivation of liberty - Native custom - Custom of murdering or mutilating adulterers - Custom not to be recognised - Not in �public interest� - Concurrent or cumulative sentences - Customs Recognition Act (Ch No 19), s 4(e) - Constitution, Sch 2.1.

CONSTITUTIONAL LAW - Custom - Recognition of - Repugnancy to general principles of humanity - Custom of mutilating adulterers not to be recognised.

The Customs Recognition Act (Ch No 19), s 4(e), provides that custom can be taken into account on sentence and s 3 provides that custom cannot be recognised or enforced if that is not in the public interest.

The Constitution, Sch 2.1, provides that custom shall be applied and enforced provided it is not, inter alia, �repugnant to the general principles of humanity�.

N1>(1)�� The native custom of murdering or mutilating an adulteress is not in �the public interest� within the Customs Recognition Act (Ch No 19), s 3, and is contrary to the �general principles of humanity� under the Constitution, Sch 2.1, and hence cannot be taken into account in mitigation of sentence.

N1>(2)�� The conduct of a victim cannot be treated as a mitigating factor on sentence.

N1>(3)�� In deciding whether sentences should be made concurrent or cumulative the court should be guided by the following principles:

N2>(i)�� Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

N2>(ii)�� Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

N2>(iii)�� When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

The Public Prosecutor appealed against sentences imposed by Amet J on the basis that the sentences imposed were inadequate.

KIDU CJ BREDMEYER MCDERMOTT JJ: This is an appeal by the Public Prosecutor under the Supreme Court Act (Ch No 37), s 24, against sentences imposed on the two respondents. The two respondents are brothers. The major offender was Sidney Kerua. He received a sentence of four years three months for the murder of his wife Veronica, one year nine months for wounding Benedict Mali with intent to do grievous bodily harm (an offence under the Criminal Code (Ch No 262), s 315, and one year three months for depriving Benedict Mali of his liberty (an offence under the Criminal Code, s 355). The sentences were made concurrent. He had spent nine months in custody awaiting trial so the total effective term of imprisonment for the three offences was five years. Billy Kerua received two years imprisonment for the manslaughter of Veronica, one year nine months for the wounding of Benedict Mali with intent to cause grievous bodily harm, and one year three months for depriving Benedict Mali of his liberty. The sentences were made concurrent and he too had spent nine months in custody awaiting trial. His total effective term of imprisonment for the three offences was two years nine months.

The three offences committed by each man are interrelated and the role of each offender is interconnected but we propose to divide the narrative which follows into the separate offences committed by Sidney and Billy. In the narrative we set out the circumstances of the offences on the facts as found by the trial judge, or as stated in evidence which he accepted as truthful.

First the murder of Veronica by Sidney. On the night of 6 November 1982 Sidney with his brother Billy and eight or nine other clansmen, who were never charged, drove up to a house at Fatima Vocational School near Banz. Sidney�s estranged wife Veronica was living in the house with her new boyfriend, Benedict Mali, a teacher at the school. The truck drove up at speed. Sidney and the others burst in; Sidney grabbed Veronica and forcibly put her in the front of the truck. Benedict was grabbed by others, trussed up with rope around the arms, legs and neck and thrown onto the back of the truck. The truck sped off. The truck stopped at the bridge over the Kumun River. Sidney who was driving got out and said, �Axe this lady and man and throw them in the river�. A passerby with a lamp told them to clear off, which they did. They eventually stopped at Rongen Creek where Benedict Mali was assaulted. The clothes were removed from Benedict and Veronica and the offenders tried to make them have sexual intercourse together. Benedict refused and was too weak through loss of blood and the beating.

The party then went to Koglamp village and at the singsing area there Sidney beat the naked Veronica with a coffee stick. He beat her all over. She had two black eyes and a broken nose. She had four broken ribs. The right wrist was broken (a fracture of the right radius bone near the wrist), as was a finger (the fourth metacarpal bone). The left wrist was broken (the left ulna fractured) as was a finger (the fourth metacarpal bone). Both wrists and hands were badly bruised and swollen. The legs were badly injured. Both ankles were broken, the whole of the right foot was grossly bruised and swollen as was the right calf; there was moderate bruising and swelling to the left foot. When Sidney was beating her around the legs with the coffee stick he said, �You have legs and you go around bigheading�. She had a total of nine broken bones, two penetrating injuries or stab wounds on the arms, and multiple bruises. Later Sidney put her to bed and offered her a cup of coffee which she refused. He went to sleep. When he woke up in the morning she was dead. Dr Beavis said that it was no one injury that killed her but probably a combination of the fractures, the shock, and the internal and external bleeding which led to her death. Sidney was the only one to have beaten Veronica. Her death was all his own work.

Sidney�s second offence was the wounding of Benedict Mali with intent to cause grievous bodily harm. Here Sidney was both a principal and an accessory to the assault by others. Benedict was grabbed from his house, tied up with rope around his arms, legs and neck and thrown onto the back of the truck. He was beaten by the men in the back of the truck. When the truck stopped at the Kumun River he heard Sidney say, �Axe this lady and man and throw them in the river�. Later at Rongen Creek the truck stopped. All the offenders got out and stood at the back of the truck. Sidney said �Where is the man?�. Benedict being afraid jumped out of the truck into the river below. Sidney came down after him with a torch, a coffee stick, a wheel spanner from a big truck, and a knife. Sidney beat him first on the back and the neck with the coffee stick. Next he used the wheel spanner and beat him in the same way from the feet to the neck. Benedict feared that the knife would be used next so he covered his neck and head with his hands. He was lying face down. The knife blade stabbed his right hand and neck. He was then booted in the face and made to face upwards. He was then stabbed with the knife on the right elbow and on other parts of his body. This attack was entirely by Sidney. Sidney then ordered Benedict to walk back to the truck. He proved incapable of that so Sidney then ordered his boys to carry him back. They dragged Benedict across the river (under the river) and he said he nearly drowned. Back at the truck the other boys joined in kicking and punching Benedict. He was then ordered to have sexual intercourse with Veronica who was standing nearby naked. Benedict said �Mi no inap� because of loss of blood and the beating. He could hardly stand and someone from behind gave him a hard kick which felled him face down to the ground. He was then stripped naked and asked several times to have sexual intercourse with Veronica. He said �No�. He was then hit and kicked again and thrown onto the truck.

The truck drove off to the village where Benedict was thrown off. He started rolling down the hill thirty or fifty metres in a deliberate effort to escape. He lay down in the mountain pitpit and he heard shouts of Sidney�s people looking for him. He avoided them and was found by an aunt. She gave him her laplap and asked him to walk but he could not. He was carried up the hill by the aunt, her husband and another. There the accused, Billy and another brother, George Kerua, who was not charged, were waiting for him. They chased away his helpers and each beat him with a big long stick. He was hit on the head and other parts of his body. His head was split and blood spurted out. He fell unconscious for a while. He was then taken inside his aunt�s house. He heard Sidney come into the house and say, �I�ve come here to finish this man off�, but relatives kept Sidney away from him.

A man named Philip Kilipo went to Mt Hagen and requested an ambulance to come. The ambulance came but it was then that Sidney wanted to assault Benedict again. Sidney also wanted to fight the ambulance driver who got frightened and returned to the hospital without Benedict. Later Benedict was taken in a private cat to the hospital. Benedict was admitted to Nazarene Mission Hospital at Kudjip with the following injuries: laceration of the scalp with concussion; contusions all over the body; left upper and lower arm grossly swollen due to contusions; left lower leg was very painful and very very swollen; small laceration on right lower leg; very small laceration of right arm near the elbow; puncture type laceration of the right upper leg; two very superficial lacerations of the right hand; and superficial lacerations of the left upper thigh. Benedict spent thirteen days in hospital and thereafter received daily treatment as an outpatient for over two months.

Sidney�s third offence was the unlawful deprivation of the personal liberty of Benedict. The details of that offence have been mentioned above. Sidney undoubtedly was the leader of the offenders. He drove the truck. He gave the orders. He burst into Benedict�s house; his men grabbed Benedict, tied his arms, legs and neck and threw him onto the truck. Sidney himself grabbed Veronica. For several hours from 7.30 pm onwards Benedict was deprived of his liberty. He was tied up, men were sitting on him in the back of the truck, he was beaten on the back of the truck, the vehicle stopped at a river and Sidney said, �Axe this lady and man and throw them into the river�. Benedict understandably took the threat seriously. Sidney had initially told him that he was taking them to �the law�, to the police. But it was obvious that that was a lie. Benedict took the threat so seriously that he jumped from the truck into the river, apparently from a dangerous height, at the next stop. He was then assaulted by Sidney on the bank of the river and then by Sidney�s men near the truck. They tried to get him to have sexual intercourse with Veronica in front of them. He continued to be deprived of his liberty until he was then taken to Koglamp village where he was thrown off the truck. That was the end of the deprivation but not of the assaults. He was later assaulted by Billy and George with sticks. Throughout the deprivation Benedict must have been in grave fear of his life; the tying up, the threat to axe him, the journeying to destinations unknown to Benedict, the number of the assaults, Sidney�s obvious rage and singleness of purpose, and the number of his accomplices � all contributed to that fear.

The brother Billy was convicted of three offences. The first was of manslaughter of Veronica. It is clear that he was an accessory to the killing of Veronica only and not a principal. He went with Sidney and the others to Benedict�s house, was present when Veronica was grabbed and put on the truck and at all the beatings and events that followed. His presence was an encouraging one to his brother and this made him an accessory. The trial judge inferred that at the time of the beatings Sidney had an intention to do her grievous bodily harm and so convicted him of murder. Billy was present at those severe beatings and his presence was an encouraging one, he did not dissociate himself from those beatings by telling Sidney to stop or by running away, so it is hard to see why he was not convicted as an accessory to murder. The trial judge, however, convicted him only of manslaughter and we must consider the question of sentence on that basis.

Billy was convicted of wounding Benedict Mali with intent to cause grievous bodily harm. It is clear that he was an accessory by his encouraging presence to the wounding inflicted by Sidney and to the other beatings suffered by Benedict, the beatings on the back of the truck, at Rongen Creek after he had been dragged from the river, and later near the truck where Benedict was stripped naked. He was a principal with his brother George, who was not charged, to a later beating about the head, body, leg and wrist with coffee sticks. During that beating Benedict�s head was cut and he fell unconscious.

Thirdly, Billy was convicted of depriving Benedict of his personal liberty. Billy was present when Benedict was grabbed from his house, tied by the arms, legs and neck, dragged to the truck and thrown on the back. Billy was present with him in the back of the truck and at the various incidents which happened later. Benedict was forcibly kidnapped for several hours and during that time was in serious fear of his life.

We consider with respect that the learned trial judge made a number of express errors on sentence and that, in any event, his sentences were manifestly inadequate. One of the errors he made was to regard native custom as a mitigating factor. The learned trial judge said:

�Your lawyer, Mr O�Connor, submits that I should take into account that you were strongly influenced by this custom, although you do have a good education. ... I am prepared to accept his submission that you were so influenced, and I think this is rather consistent with the way in which you inflicted the injuries on Veronica, consistent with the way Sir Wamp Wan said women were dealt with in the past.�

Sir Wamp Wan gave evidence of the local custom in that area. He spoke of the custom from �time before�. Sir Wamp Wan was speaking of the previous custom � to kill the adulteress, mutilate her and throw her in the river and to kill the man too. Custom can be taken into account on sentence by virtue of the Customs Recognition Act (Ch No 19), s 4(e), but that section is subject to two important limitations. By s 3 of that Act custom cannot be recognised and enforced � and to give a reduction in sentence because of a custom is to �recognise� it � if that is not in the public interest. We believe it is not in the public interest that a man should torture and murder his wife for adultery and kill her lover. It is in the public interest that grievances are redressed in the courts. The second limitation is in the Constitution. Schedule 2.1 provides that custom does not apply if it is repugnant to the �general principles of humanity�. The custom of payback is, in our view, contrary to those principles.

Secondly we consider that the trial judge erred in finding that Sidney was enraged or provoked on seeing his wife and Benedict together. The trial judge said:

�I accept also that you would have been highly emotionally influenced by the sight of your wife in another man�s house standing with the man appearing in your eyes to be in a very intimate relationship.�

We do not consider that that finding, which is really a conclusion from other facts, was open on the evidence. Sidney did not suddenly stumble upon his wife and Benedict together. Sidney and Veronica had separated two months before. She had summonoed him in the District Court and there had been a court case. Sidney had been told where they were living and he went there, the trial judge found, with the express purpose of beating them up and teaching them a lesson they would not forget. On arriving at the house, he did not catch them in the act of adultery nor in any compromising position suggesting that they had just had sexual intercourse. It was 7.30 pm and there was a student in the house helping with the cooking and cutting the firewood for the evening meal. The laplap around Veronica�s breasts on the evidence suggests nothing more than that she had washed and changed for dinner. Sidney had a motive for his conduct � his wife had left him and gone to live with another man � but he went to the house knowing that they were there and in order to beat them up. He was not �provoked� by what he saw there in a way which suddenly inflamed his passions and caused him to assault them. He had formed the intention to assault them previously.

�I accept also that both Veronica and Benedict Mali must be held responsible for part of this trouble. They brought about this trouble by their adulterous relationship.�

The victims� responsibility for part of the trouble was one of the matters which influenced the judge on sentence. Certainly Sidney had a motive for what he did but we do not agree that the victims� conduct should be used to reduce sentence. The argument that it should reduce sentence was raised on appeal in R v Roberts [1982] 1 WLR 133 at 135. In that case Hugh Roberts was found guilty as an accessory to the rape of his wife by his uncle. On appeal against sentence he raised as a ground of mitigation of sentence that, prior to the rape, his wife had admitted to him that she had committed adultery. The Court of Appeal, per Lord Lane CJ, dismissed this ground in a sentence. �It seems to this Court to be an extraordinary process of thought which regards this as some excuse for abetting rape.� The substance of those remarks apply to this case.

The National Court has a discretion whether a sentence should be concurrent or cumulative but that discretion should be exercised in accordance with well-known principles. The latest local case on those principles is Acting Public Prosecutor v Konis Haha [1981] PNGLR 205. We follow that case and the useful statement of the English law found in Thomas, Principles of Sentencing (2nd ed), at 53-61. The first principle is what Thomas calls �the one-transaction rule�: where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. The Supreme Court in Tremellan v The Queen [1973] PNGLR 116 made the same point in different words (at 117):

�Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.�

The facts of Tremellan�s case illustrate this rule. The counts were paired for stealing and for fraudulent and false accounting, and the Supreme Court on appeal imposed concurrent sentences. Other examples are a series of sexual assaults or frauds on the same victim. There can be exceptions to this rule and the Court of Appeal in England has upheld sentences which appear to offend this rule because the court considered that the totality of the sentence was correct. It is more a rule of thumb or a guiding principle than a strict rule and it is subject to the totality principle which we mention in a moment.

The second rule is that where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. Examples given by Thomas are burglary and violence to the householder, assault plus escaping from custody, and sexual assaults on different victims. Wari Mugining v The Queen [1975] PNGLR 352 affords a local example. Cumulative sentences were upheld for grievous bodily harm and assault with intent to commit rape. Konis Haha�s case (supra) supplies another local example; cumulative sentences for robbery with violence and rape were imposed. This rule, like the first one, is flexible; it is a rule for guidance only and like the first rule is also subject to the totality rule.

The third rule, the totality rule or principle, is that when the sentencer has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. The court must look at the total sentence and see if it is just and appropriate for the totality of the criminal behaviour.

Applying these principles to this case we consider that the killing of Veronica was a separate offence from those committed on Benedict and the punishments should be cumulative. The offences were on different victims which brings them under the second rule, or as Thomas puts it (at p 54), as an exception to the first rule. The two offences committed on Benedict came within the one-transaction rule and the sentences for them should be made concurrent.

We consider that the learned trial judge erred in sentence in the matters of principle mentioned below and that, in any event, his sentences were inordinately low.

Bearing in mind all the permissible factors that can be taken into account on sentence we allow the appeal against sentences, we set aside the trial judge�s sentences, and impose the following:

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On Sidney
1. Murder of Veronica.	11 years
2. Wounding of Benedict with intent to do grievous bodily harm.	4 years (cumulative on 1)
3. Depriving Benedict of his liberty.	3 years (concurrent)
Total	15 years
On Billy
1. Manslaughter of Veronica. /p>	4 years
2. Wounding of Benedict with intent to do grievous bodily harm.	2 years (cumulative on 1)
3. Depriving Benedict of his liberty.	2 years (concurrent)
Total	6 years

Supreme Court of Papua New Guinea

Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985)

Papua New Guinea Law Reports - 1985