Nugu v The State [1991] PGSC 1; SC416 (26 April 1991)

Unreported Supreme Court Decisions

SC416

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCA NO. 33 OF 1989
PETER NUGU
APPELLANT
V
THE STATE
RESPONDENT

Waigani

Amet Konilio Brown JJ
28 February 1991
26 April 1991

CRIMINAL LAW - Appeal against sentence - Severity of sentence - Whether error in principle of sentence under the circumstances.

The appellant pleaded guilty to the charge of unlawful killing contrary to s.299(1) of the Criminal Code Act and was convicted and sentenced to seven years imprisonment with hard labour. The appellant the father of the deceased became angry with the deceased and in rage took hold of his son’s hand through the drivers open window and commenced to drive away gaining speed. After travelling a short distance he let go whilst the vehicle was travelling at high speed causing the child to be run over and his skull crushed by the moving vehicle. The child died instantly.

On appeal against severity of sentence.

Held

(1) The issue is whether there had been an error of principle in fixing such a sentence sufficient to warrant this Courts interference and as such the first enquiry must be into the circumstances of death.

(2) The circumstances of death are such that the father has absolute disregard for the well being of the boy and it is the worst case of his total abrogation of the filial duty he owes his son. Consequently it fall into the most serious category.

(3) The sentence is not so manifestly excessive as to warrant this Courts interference.

Cases Cited

Rex Lialu v. The State (SC. 401 OF 1989).

Appeal

This was an appeal against the severity of sentence imposed by a trial Judge of the National Court on the charge of unlawful killing contrary to s.299(1) of the Criminal Code Act.

Counsel

Appellant in person

V. Noka, for the respondent

26 April 1991

AMET KONILIO BROWN JJ: The appellant has brought this appeal in person against the severity of the sentence of seven years in hard labour Hinchliffe J. imposed at Lae on the 11 April, 1989. He was indicted on a charge of unlawful killing pursuant to s 299(1) of the Criminal Code Act and pleaded guilty. He was represented by counsel, from the Public Solicitors Office at that time.

In his grounds for appeal the appellant criticizes the Public Solicitor for “only spending two hours interviewing” him before the hearing and thus he says precluding proper preparation of his case. We consider his statement (coupled with his plea for leniency while pointing to the unintentional consequences, the death, “as a pure traffic accident”) highlight the difficulty in an unrepresented appellant of appreciating this Courts role as a Court of review rather than as a trial Court. We see no justification however, to criticise the Public Solicitor.

The short facts were that on the 6 November 1988 the appellant, the father of the deceased Thomas Nugu (aged 6 at the time of his death) had hold of his sons hand whilst driving his motor vehicle on the roadway, whereupon he let go whilst the vehicle was travelling at speed causing the child to be run over and his skull crushed by the moving vehicle. The child died instantly.

We are satisfied on reading the depositions the trial Judge was fully justified in accepting a plea of guilty under the circumstances as deposed by various eye witnesses.

The issue here then is whether there has been an error of principle in fixing such a sentence of imprisonment by the Judge sufficient to warrant this Courts interference.

The first enquiry must be into the circumstances of the death, and in this case the culpability of the appellant. The Court has clearly enunciated applicable principles in Rex Lialu v. The State (SC 401 of 1989) when considering sentences for manslaughter.

On reading the statement of one Judy Tsub, an eye witnesses and neighbour, (known to the appellant), on the day in question Peter Nugu came to where his son was, with Judy Tsub, drinking a coconut outside her house. The appellant became angry with the boy for reasons which, on his record of interview (taking account of Judy Tsub’s refutation of the appellant’s surmises involving the boy’s whereabouts) appear irrational. The appellant in rage took the boy by the hand by hanging onto him through the driver’s open window and commenced to drive away gaining speed until the boy was flying free from the ground, yelling to his father to let him go. After travelling a short distance he did so and the boy dropped to the roadway when he was crushed by his father’s vehicle.

This is a callous case of absolute disregard for the well being of the boy. We could not imagine a worst case of a fathers total abrogation of the filial duty that he owes his child unless it involve some psychopath. It consequently falls into what may be called the most serious category. The sentence of seven years is not so manifestly excessive as to call for this Courts interference.

We should mention that the appellant sought to impugn the eye witnesses accounts by suggesting they exhibited malice towards him because of real or imagined wrongs that he may have committed towards them. We cannot entertain any consideration of such assertions in this Court but it is again an illustration of the difficulty this Court must face when considering appeals by legally unrepresented litigants. Suffice to say however, there was no evidence of remorse in his record of interview, any remorse exhibited in this Court was more as a result of the period of incarceration than through the effect of the death of his son.

We would dismiss the appeal and that is the order of the Court.

Appeal dismissed

Lawyer for appellant: In person

Lawyer for respondent: V. Noka