Crime and Native Custom in Papua New Guinea: The Provision for Custom as a Mitigating Factor in Sentencing

Abstract

The Customs Recognition Act 1963 of Papua New Guinea provides for native custom to be taken into account by the courts as a mitigating factor in sentencing. This provision has the potential to give effect to the goal of the Papua New Guinea Constitution to protect custom as an important part of society. However, the impact of the provision is dependant on the Papua New Guinea courts’ willingness to give effect to it in practice. This paper assesses the courts’ approach to the provision by carrying out two sets of case studies. It explores the courts’ approach to the provision in regards to the customs of sorcerer executions and compensation settlements. In doing so, it demonstrates that the Supreme Court has narrowly construed the criminal law in accordance with western values and has given limited effect to the provision. On the other hand, in a number of cases the National Court has taken a different approach to that of the Supreme Court and has given greater effect to the provision. These National Court cases are more in line with the constitutional goal to protect custom. Accordingly, they provide positive examples for the courts of Papua New Guinea to follow in the future.