Apia v The State [1978] PGSC 1; SC137 (25 October 1978)

Unreported Supreme Court Decisions

SC137

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
PETER NAIBIRI AND KUTOI SOTI APIA
V
THE STATE

Waigani

Prentice CJ Saldanha Andrew JJ
3 October 1978
25 October 1978

CRIMINAL LAW - attempted murder - life sentences - youthful offenders - whether excessive.

CRIMINAL LAW - attempted murder - potentially more serious than some crimes resulting in death.

Order

The Court orders that the appeals be refused and the convictions and sentences of the appellants be confirmed.

PRENTICE CJ SALDANHA ANDREW JJ: Life sentences have been imposed on each of the appellants on pleas of guilty to attempted murder. It is contended in the appeal that life sentences were not called for and should be set aside as excessive. It is conceded that any sentence substituted would require to be severe.

The appellant Naibiri is some 17 years of age; Apia some 19 years. The former enjoyed education to Form II standard, the latter is uneducated. Both are urban dwellers whose people derive from the Tapini and Kunemaipa Sub Districts respectively. On the night in which they committed the crime with which we are concerned, the appellants had broken, entered and stolen from premises, and had stolen the vehicle in which they were travelling when noticed by the police. A prolonged chase at very high speed through the streets of Moresby ensued. As His Honour the trial Judge put it, when cornered and their vehicle had gone off the road, they leapt to attack the three police who had been following them. In a very determined attack, armed with knives, the appellants (and allegedly another man) drove off two of the policemen, and returned to the police vehicle and stabbed twice in the chest and back the police driver. That the stab wounds did no worse than nick the liver and the corner of a lung and cause severe blood loss, and that the driver in a desperate condition managed to drive himself off to help before collapsing, are matters that hardly can stand effectively to the appellants’ credit. There is no suggestion that the police acted with provocation or other than complete propriety. The police were completely unarmed.

It was submitted that the sentences were manifestly excessive, having regard principally to the youth of the offenders, that they had no prior convictions, that their offence was not premeditated, and that it was not the worst or most serious of its kind.

As was pointed out in Paulus Mandatititip & Anor v. The StateSC137.html#_edn4" title="">[iv]¹, this Court finds difficulty in these days in accepting pleas of youthfulness to serious crime; and this must be so particularly in regard to violent crime of the most serious categories. No figures were put before the Court on this appeal, but it is well known that a high proportion of urban crime is perpetuated by youth. In Papua New Guinea society it is to our observation the fact, that youths of 17 and 19 are frequently men accepting adult responsibility in society’s affairs. Certainly these appellants did not behave like immature youths in carrying their attack with determination to the persons of the police officers.

Agreed, this crime was not premeditated in the sense that the stabbing had been thought about and planned hours or days ahead. But it is not something that happened on the spur of the moment or in suddenly provoked rage. The appellants were in company and were armed. They carried the attack to the surprised policemen. The preservation of law and order in this country, where so many people go about their daily duties armed with tools that can be used as weapons, is of cardinal importance to the development of a prosperous nation in which the ideals of the Constitution can be brought to reality. Outbreaks of violence on police and on people in custody, appear to be significantly on the increase - to such an extent as to produce in some members of the community the impression that law and order has all but broken down. The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attacks them.

The crime of attempting to murder, insofar as it involves the specific (though unsuccessful) intent to kill - may be regarded as potentially more serious than that of murder and than many cases of manslaughter, which involve intents to do less serious things, but produce, without intending - death. So far, no case was adduced to this court in which the crime of attempted murder had met with a penalty of more than 12 years. The range appears usually to have been between 4 and 10 years. Nor has the crime of wilful murder very commonly produced a life sentence in recent years.

We find ourselves unable to view this offence as other than being among the worst of its kind. We don’t know that we ourselves would have imposed the sentences appealed from. We recoil from the prospect of a youth being imprisoned for the actual term of his natural life. However we do not think our personal views would reflect those of the law abiding community at large as to this incident and the needs of the time. We find ourselves unable to come to the conclusion that the sentence is uncalled for and manifestly excessive. We should have thought that the minimum which could have been imposed for the attempted murder would have been 12 years cumulative upon the 2½ years which had been imposed beforehand for the breaking entering and stealing.

The question of reviewing these sentences will no doubt eventually, after many years, come before the Advisory Committee on the Power of Mercy, established pursuant to s. 152, the Constitution. And even before that point in time dependent upon the degree of reformation of character exhibited by the appellants in the meantime, release under licence, under s.627 the Criminal Code, might be considered by the advisers of the day. These possibilities remain for the future.

We consider the necessities of the present time require that the appeal be refused and the sentences confirmed.

Solicitor for the Appellants: Public Solicitor, M. Kapi

Counsel: M. Kapi

Solicitor for the Respondent: Public Prosecutor, K.B. Egan

Counsel: J.W. Karczewski

SC137.html#_ednref4" title="">[iv]^{Unreported Judgment SC 129 of 3rd May, 1978.}