Ake, Public Prosecutor v [1978] PGSC 3; [1978] PNGLR 469 (1 December 1978)

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CRIMINAL LAW - Appeal against sentence - Murder - Relevant matters for consideration - Public deterrence to be emphasized - Plea of guilty, work-background and youthfulness of limited relevance - Appeal against inadequacy - Sentence of 8 years substituted for sentence of 4 years.

CRIMINAL LAW - Sentence - Plea of guilty - “Most favourable version of facts” doctrine - Applicability where no challenge to facts in state case on plea.

On appeal against inadequacy of sentence, where the accused was convicted on a plea of guilty on a charge of murder and sentenced to 4 years imprisonment with hard labour, it appeared that the accused, a man in his late twenties with no prior convictions, with a steady work record and two wives and six children had, following an altercation, attacked an off duty and out of uniform police constable with a weapon, hitting him savagely on the back of his head;

N1>(1) When no challenge is made to any of the facts alleged in the state case on a plea of guilty, the doctrine that the version of the facts most favourable to the accused should be acted upon, does not apply.

O’Malley v. French (1971) 2 S.A.S.R. 110 at p. 112; and Reg. v. Gabai Vagi and Ors. [1973] P.N.G.L.R. 30 distinguished.

N1>(2) Matters which ought not to be taken into account on sentence on a charge of murder as mitigating factors except to a limited extent, (and which were so taken into account) include the question of “youthfulness”, industry in employment, and the fact of a plea of guilty, except to the possible extent that it indicates remorse and contrition and the possibility of a more ready rehabilitation.

N1>(3) Matters which ought to be taken into account on sentence on a charge of murder (and which were not given sufficient weight in the present case) include the nature of the attack, the element of pre-intention, the degree of sophistication of the accused and the retributive and public deterrent elements of the punishment required.

N1>(4) Accordingly, there had been a manifest error of insufficiency of sentence in the present case and a sentence of eight years imprisonment with hard labour should be substituted.

This was an appeal against sentence by the Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975 on the ground of inadequacy of sentence. The sentence appealed against was a term of imprisonment with hard labour for 4 years on a charge of murder.

PRENTICE CJ PRITCHARD GREVILLE SMITH JJ: This is an appeal brought by the Public Prosecutor under s. 23 of the Supreme Court Act 1975, on the ground of inadequacy of sentence. A preliminary point was argued as to whether the Court should adhere to the rulings of the pre-Independence Full Court in Pia-Afu’s case[dclxix]¹ and other decisions, as followed subsequently by this Court. The question was discussed but not decided in Public Prosecutor v. John Aia and Peter Pino [dclxx]². If the principle of the decision in Pia-Afu’s case were to remain the guide, then on an appeal such as this, the Court would have an unfettered discretion to vary the sentence appealed from. If not, then this Court should only perhaps agree to such an appeal where a manifest insufficiency of sentence or a patent error is disclosed. For reasons that will appear later we consider it unnecessary to decide that question in this appeal.

N1>The respondent pleaded guilty in an unequivocal plea, to a charge of murder. Having spent 2½ months in custody awaiting trial, he was sentenced to 4 years imprisonment with hard labour. He had had no prior convictions, and was said to have held a steady job with the Public Works Department for 10 years. His age was stated at 23; but clearly this must be in error. It was indeed queried by his own counsel. Allowing for his 10 years of work and the fact that he has 2 wives and 6 children, it would appear that despite his possible looks, he must be in his late 20’s at the least.

1. He is a young man with no prior convictions except one that is rather doubtful for a driving offence which of course is nothing to do with crime such as this.

2. He has been a hard working young man and was many years with the old Public Works Department.

3. He has 2 wives and 6 children. He has 4 children by his first wife aged between 4 months and 5 years, and 2 by his second wife aged 1½ and 3 years.

4. He has been a bit over 2½ months in custody awaiting trial which of course I will take into account.

5. He pleaded guilty and thus saved the Court the time and the expense of what seems to me to have been a 2½ to 3 day trial.”

The picture presented by the depositions upon which his Honour proceeded was a little confused. It appears that the victim was a police constable who was neither on duty nor in uniform, at the time he was attacked. The case is therefore, as his Honour very properly said, not to be regarded as of quite the same gravity as another reported in the same week, in which police on duty had been viciously attacked and one well-nigh killed.

The victim, together with his brother, a corrective institutions officer, had apparently been alerted as to some ill-feeling which had arisen between some Mekeo people and some Keremas to whom they themselves belonged. Feelings had it seemed, been aroused, following the prosecution of persons in the Sabama area of Port Moresby for gambling. The two men walked to a house to “straighten the talk”. Something of an altercation occurred, in the currency of which a truck arrived with a group of Mekeos, of whom the respondent was one. The respondent descended, went into his house, came out with a weapon, chased everybody off, except the victim and his brother (who was a few feet away) and then hit the victim hard on the back of his head. From the injuries it is clear that the blow was a most savage one. The respondent was also armed with a knife, and after felling the victim, threatened his brother with the knife.

Mr. Kapi relying on the decision of O’Malley v. French[dclxxi]³, that of a single judge of the Supreme Court of South Australia, submitted that where the evidence of the witnesses conflicted with that of the respondent in his record of interview, then on the plea of guilty, and accordingly now, the version most favourable to the accused must be accepted. We think that decision is distinguishable, in that therein, on a plea of guilty, facts in mitigation were alleged. In the instant case, neither on plea nor on allocutus was any challenge made to any of the facts sworn to in the evidence. Counsel, however, in his address made reference to the statement by the respondent in his record of interview that the weapon used was a piece of timber and not an iron pipe. We do not think the procedure followed in this case is of the type that would allow the “most favourable version” doctrine referred to in Reg. v. Gabai Vagi and Ors.[dclxxii]⁴ to operate.

N1>However, in the event, this Court, considers that the details of (a) whether the respondent knew the victim was a policeman and (b) whether the weapon used was a piece of timber or an iron pipe (those in which the more favourable version of the record of interview is proffered in preference to that in the evidence of the state witnesses) are not of material significance.

We are satisfied that the facts exhibited, establish a most vicious attack, pursued with determination, without provocation, an attack not made on the sudden, but with an element of some pre-intention. Undoubtedly, as his Honour said, very, very great force was involved in inflicting the head injuries which killed the deceased. Clearly the respondent intended to do grievous bodily harm to the victim — indeed he himself in his record of interview, conducted in English, stated that his intention “was to kill him dead”. He threatened another man as well. The respondent was not an unsophisticated villager, but had lived many years in Port Moresby, in a suburb of which this grave crime was committed.

Now in the setting of these facts, it seems to us with respect, that his Honour has misdirected himself in a number of respects. We consider that no question of “youthfulness” should have been taken into consideration at all. Nor should the matter of industry in employment, we think, have weighed to any degree as a mitigating factor in a charge of murder. Similarly, we consider that the pleading guilty ought not to avail in such a case, that of a charge of murder, except to the possible extent that it indicates remorse and contrition and the possibility of a more ready rehabilitation (Reg. v. De Haan)[dclxxiii]⁵; and in this connection we distinguish the leniency which courts extend where pleas of guilty are entered to less serious crimes thereby saving embarrassment to witnesses, or heavy inconvenience to the State.

Though his Honour concluded his remarks with the sentence “It must be remembered that there is far too much violence in the country and not only must offenders be punished for it, but the general public must be warned against committing similar crimes”; we find ourselves with respect, also driven to the conclusion that his Honour has allowed markedly insufficient weight to the retributive and public deterrent elements of the punishment required in this case. We consider error of insufficiency of sentence to be manifest; and that therefore the appeal should be allowed. We propose to substitute a sentence which we believe is called for by the facts of the case, and by the times.

In arriving at the proposed substitute figure namely 8 years imprisonment with hard labour, we have taken into account in the respondent’s favour that upon his arrival an atmosphere of excitement and disturbance had been created in close proximity to his house which involved some members of his family. Because of this factor we have marked the deterrent figure at somewhat less than it might otherwise have been.

Appeal allowed. Sentence of 8 years hard labour substituted for that imposed by trial judge.

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[dclxix][1971-1972] P. & N.G.L.R. 393.

[dclxx][1978] P.N.G.L.R. 224.

[dclxxi] (1971) 2 S.A.S.R. 110 at p. 112.

[dclxxii][1973] P.N.G.L.R. 30.

[dclxxiii] [1968] 2 Q.B. 108.

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Supreme Court of Papua New Guinea

Ake, Public Prosecutor v [1978] PGSC 3; [1978] PNGLR 469 (1 December 1978)

Papua New Guinea Law Reports - 1978