Secretary for Law v Peter [1974] PGSC 33; [1974] PNGLR 99 (30 April 1974)

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CRIMINAL LAW - Appeal against sentence - Application to increase sentence - Attempting unlawfully to kill police officer.

The Supreme Court has unfettered discretion to alter a sentence imposed by a trial judge but must give due weight to the opinion of the trial judge and the circumstances of the trial which may not be apparent or available to the court of appeal.

Reg. v. Pia-Afu, [1971-72] P. & N.G.L.R. 393 at pp. 395, 396 approved and applied.

Sentences of two years’ imprisonment increased to four years’ imprisonment for convictions of unlawfully wounding with intent to disable a police officer and attempting unlawfully to kill a police officer, while both officers acting in proper manner in discharge of their functions.

This was an appeal by the Secretary for Law pursuant to s. 29 (1) of the Supreme Court (Full Court) Act 1968, against the inadequacy of sentences of two years’ imprisonment imposed by the Supreme Court for convictions under ss. 317 (1) and 306 of the Criminal Code.

FROST ACJ CLARKSON WILLIAMS JJ: This is an appeal by the Secretary for Law pursuant to the Supreme Court (Full Court) Act 1968, s. 29 (1) against the inadequacy of sentences of two years’ imprisonment imposed by the Supreme Court during the November sittings 1973 at Port Moresby.

The first respondent was convicted under s. 317 (1) of the Criminal Code of unlawfully wounding one Constable Ebu with intent to disable, and the second respondent under s. 306 of attempting unlawfully to kill one Constable Milford Mota. Each offence is punishable by life imprisonment.

The facts of the case are that on 20th August, 1973, three plain clothes policemen, including Ebu and Mota, attached to the breaking squad were questioning the first respondent. That respondent is aged about twenty-five years and is the son of the second respondent who is said to be about forty years. The ages are presumably approximate. At the request of the police the first respondent took them to the house occupied by himself and his father on the Brown River Road just beyond the Laloki River. The door of the house which was raised about 6 feet from the ground on stilts was found to be padlocked. However the second respondent then arrived and when asked for the key said it was in the possession of his wife. The police accompanied by the first respondent then left for Koki market where his mother was said to be. She was eventually traced to Gordons but claimed she had lost the key. The police party then returned to the house with the first respondent. They then found the front door opened. The second respondent was sitting under the house. The police then went into the house through the open door and commenced to search it. Constable Ebu found two radios on the floor under some cartons. When asked where he got them the first respondent said he bought them. Ebu then walked to another part of the room. At this stage the first respondent and Constable Mota were in the centre of the room. Ebu bent over to pick up from the floor an empty carton when he was struck on the head by the first respondent with a steel piping which was later found to be shaped as a digging stick. He fell to the floor and the first respondent then began to struggle with Mota in the middle of the house. Ebu wounded, then jumped from the house. The third constable also fled. In the room the struggle continued and Mota struck the first respondent to the floor. The latter bit Mota on the breast very hard. Mota was bending over him when the second respondent entered the room. He got an axe from the doorway and swung it to Mota’s forehead but Mota avoided the blow and butted the second respondent who fell to the ground. Mota was then chased away from the house. The state of mind of the second respondent can be gathered from his record of interview in which he said he was very angry and really wanted to kill Mota.

Mota fortunately escaped injury but Ebu was injured about the head and was treated at Port Moresby Hospital where he was kept overnight. His head was still bandaged four days later on 24th August.

At the trial the respondents were charged not only with the offences referred to but also with other offences of assaulting Mota in the execution of his duty which were alleged to have taken place as the respondents chased Mota away from the house. Each respondent pleaded not guilty but after Ebu had given his evidence leave was sought for the respondents to change their pleas and after the trial judge heard Mota’s evidence pleas of guilty were entered in respect of the convictions appealed from and also in relation to the charge against each accused of assaulting Mota in the execution of his duty. The first respondent also pleaded guilty to a count of wilfully and unlawfully damaging the wireless equipment on the police vehicle. This charge related to evidence that the respondent had damaged the aerial and wrenched the microphone from the wireless. There is no appeal against these sentences which were made concurrent.

Upon the allocutus the first respondent said he hit the policeman because he kicked the door open and threw things about the house. The second respondent also said that the reasons for his actions were that the policemen broke into his house, threw things around and fought his son and that he tried to stop the fight between the policemen and his son. The learned trial judge however must be taken to have rejected these exculpatory statements because he found that the police were unarmed and doing their duty as policemen and making inquiries. His Honour however made allowance for the fact that each respondent became suddenly angry, the first respondent when the police were in the house and the second respondent when he saw the police fighting his son.

Under s. 29 (1) this Court has an unfettered discretion to alter the sentence imposed by the trial judge, R. v. Pia-Afu[cxvii]¹. But due weight must be given to the opinion of the trial judge and the circumstances of the trial which may not be apparent or available to the court of appeal (ibid p. 396). It is thus important to allow for the judge’s impressions obtained from the evidence during the trial. However in this case the evidence heard before the pleas of guilty were entered was limited to that of Ebu and Mota which gives only the narrative of the events set out above. In fact neither was cross-examined.

The main submission of counsel for the Crown was that the trial judge gave too little weight to the facts that the respondents were engaged in an attack with dangerous weapons upon two unarmed police who on the judge’s finding were acting quite properly in the course of their duty, and further that they were persons of mature age and of some sophistication living on the edge of the city. In fact both men made a living as market gardeners. There is to be taken into account in favour of the second respondent that he acted without premeditation and to some extent that he reacted in the traditional way by going to the assistance of his son whom he saw struggling with the police. But this Court cannot condone in the settled environment of Port Moresby conduct involving the swinging of an axe at a policeman’s head. The same absence of premeditation is not apparent in the actions of the first respondent who had been in the company of the police for several hours that afternoon.

In all the circumstances surrounding the case we are of the opinion that the sentences were inadequate and insufficient. Whilst the learned trial judge found that the policemen were unarmed and were acting in the course of their duty, we do not consider, with all respect to him, that he gave sufficient weight to this feature of the matter. The policemen were unarmed and there is no evidence that they acted in a high-handed or provocative manner. In fact it appears that they acted with complete propriety in the performance of their duty. The police have a very important duty to perform in the preservation of law and order in the community and, whilst acting in a proper manner in the discharge of their functions, are entitled to expect and should receive the protection of the law from unwarranted actions of this nature. In our opinion the sentences imposed do not adequately reflect this important aspect of the matter.

The proper sentence to be imposed in each case we consider is imprisonment with hard labour for four years. Taking into account as did the trial judge that the appellants were in custody for about three months awaiting trial we would substitute in each case a sentence of three years and nine months.

[cxviii]The relevant portion of s. 20 of the Supreme Court (Full Court) Act, 1968, is as follows:—

s. 20 (3) No appeal lies to the Full Court—

(b) without leave of the Judge or of the Full Court, from an interlocutory judgment made or given by a Judge except—

(i) where the liberty of the subject or the custody of infants is concerned;

(ii) in cases granting or refusing an injunction or appointing a receiver; and

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions.

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Supreme Court of Papua New Guinea

Secretary for Law v Peter [1974] PGSC 33; [1974] PNGLR 99 (30 April 1974)

Papua New Guinea Law Reports - 1974