Leslie v The State [1998] PGSC 22; SC560 (7 August 1998)

Unreported Supreme Court Decisions

SC560

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 82 OF 1996
JOE FOE LESLIE LESLIE - APPELLANT
V
THE STATE - RESPONDENT

Waigani

Amet CJ Kapi DCJ Los J
16 July 1997
7 August 1998

CRIMINAL LAW - Appeal against sentence - Appellant a prison escapee serving prior conviction for wilful murder - Attempt to unlawfully kill policeman in the execution of lawful duty - Offence tantamount to an attack on function of the Police Force under s. 197 of the Constitution - Use of firearm - Increase in use of violence against police - No respect for the law and value of human life - Worst type of offence - Life imprisonment confirmed.

The appeal on both conviction and sentence but appeal against conviction was abandoned at hearing. The appeal against sentence was dismissed.

Held

(1) Courts must protect the police, as they carry out their duties, by stern punishment on anyone who attacks them.

Peter Naibiri and Kutoi Soti Apia (Unreported judgement of the Supreme Court dated 25th October 1978, SC137) re-affirmed.

(2) Where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished.

(3) Appellant was determined to fight even though the house was surrounded by armed policemen. He showed no respect for law and the value of human life.

(4) Trial judge correctly imposed life imprisonment after taking into account prior conviction. Appeal dismissed and sentence confirmed.

Cases Cited

Peter Naibiri and Kutoi SotiApia v The State (Unreported judgement of the Supreme Court dated 25th October 1978 SC137)

Ure Hane v The State [1984] PNGLR 105

Counsel

D Koeget for the Appellant

C Manek for the Respondent

7 August 1998

AMET CJ KAPI DCJ LOS J: The appellant pleaded guilty to a charge of attempted murder pursuant to s. 304 (a) of the Criminal Code (ch 262). The trial judge sentenced him to life imprisonment on 17th October 1996. The appellant filed an appeal in person against conviction and the severity of sentence.

At the hearing, the Public Solicitor granted legal aid and abandoned the ground of appeal against conviction. The appeal proceeded against sentence only.

The facts which form the basis of sentence are as follows. At the time the offence was committed, the appellant was a prisoner and had escaped from Bomana prison and was on the run. On 13th November 1994, police received a tip-off that he was seen at the Siraka Settlement. An operation code-named “Limalima” was mounted to arrest the appellant. At approximately 3 pm, police surrounded the house where the appellant was hiding. Lawrence Torres, a policeman involved in the operation then proceeded up the steps of the house where the appellant was and called out if there was anyone in the house. There was no response so he pushed the door open and found the appellant lying on the floor with a sawn-off shotgun. The appellant fired and shot Mr Torres injuring him on the right shoulder. Mr Torres ran out of the house and he was taken to the hospital to be treated.

In the mean time, other policemen who had surrounded the house fired shots into the house to force the appellant out but he did not come out. The police then fired a gas canister into the house but still the appellant did not come out. During this time he fired another shot at the policemen outside but fortunately did not injure anyone. It was only after a fire started from the gas canister that was fired earlier that the appellant came outside the house. The police shot him on the leg and apprehended him.

The doctors report revealed that the victim suffered a ten percent loss of the efficient use of his right shoulder and this is a permanent disability. The doctor also reported that the victim suffers from constant arthritic pain in his right shoulder.

The trial judge considered this case to be amongst the worse type and imposed life imprisonment.

The law is clear that in an appeal against sentence, the onus is on the appellant to demonstrate that the trial judge fell into error in the exercise of his discretion.

Counsel for the appellant submitted that the trial judge had over emphasised the deterrent aspect of sentencing and thereby fell into error.

On the other hand counsel for the respondent has submitted that counsel for the appellant has failed to demonstrate any error on the part of the trial judge.

This case involved an attempt to unlawfully kill a policeman in the execution of his duties. The trial judge in his reasons for decision took into account what the Supreme Court has said regarding violence against police in the course of performing their duties. He referred to the following passage from Peter Naibiri and Kutoi Soti Apia v The State (Unreported judgment of the Supreme Court dated 25th October 1978 SC137):

“Outbreaks of violence...appear to be on the increase...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 trial judge also referred to a subsequent case where the Supreme Court discussed the most serious types of wilful murder. In Ure Hane v The State [1984] PNGLR 105 at 107 Bredmeyer J listed wilful murder of a policeman in the execution of his duty as one of the worst type. At page 107 Bredmeyer J referred to Peter Naibiri and Kutoi Soti Apia v The State (supra) and at page 108 continued:

“The courts must protect the police, as they carry out their duties, by stern punishments on anyone who attacks them.”

At page 109 His Honour continued to discuss wilful murder of policeman during the course of their duty:

“A policeman carrying out his duty deserves the full protection of the law. If he is trying to arrest an escapee, for example, he should be able to do so by virtue of the authority which attaches to his position without fear of attack. He should be able to arrest an escapee, although outnumbered by the escapee’s wantoks.”

After referring to these passages the trial judge in the present case continued:

“I adopt these statements in the present case and I want to reiterate my own belief that, where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to attack on the function of the Police Force under s. 197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties.”

We wish to reaffirm the statements referred to above as proper principles applicable to sentencing of violent offenders against law enforcement agencies such as the police. We should also point out that there has been an increase in the use of violence against the police since the cases referred to by the trial judge. It is a matter of public knowledge that the use of fire arms against the police by violent offenders is prevalent in the National Capital District. In our view the trial judge correctly referred to the principles and we do not find any error in the application of these principles to the facts of the present case.

The trial judge also took into account prior convictions. This include a conviction for murder for which he was serving time in prison.

We find that the appellant in this case was determined to fight even though the house was surrounded by armed policemen. He showed no respect for the law and the value of human life. We find that this case falls into the category of worst type of this class of offences. In the circumstances, we find that the trial judge correctly imposed life imprisonment.

Before we leave this case, we wish to comment on some of the remarks made by the trial judge in his reasons for decision. First, the trial judge made reference to media reports that the appellant was a “notorious criminal”, “hard-core criminal” and “the most wanted criminal”. We should point out that judge’s ought to be cautious about accepting media reports as proof of any fact because they do not approach questions of fact on the same basis or principles as a court of law. A court should inform itself of any such matters in an appropriate manner under the law. The trial judge did make reference to these media reports but went on to say:

“and judging from your past records, I consider that you are threat to the community and a menace to society.”

The trial judge was entitled to make such a finding on the records of the appellant which were made available to him.

After imposing life imprisonment, the trial judge went on to say:

“I recommend that you not be paroled. Despite my recommendation, it may be possible, after many years, that your sentence may be review by the Advisory Committee on the Power of Mercy. Alternatively, you may be considered for release under license pursuant to s. 615 of the Criminal Code. Whatever the powers that be do in the future, it will depend on the degree of reformation of character and rehabilitation. In passing, perhaps I should say this, if you are released and you commit another wilful murder, you can be assured now that you may well face the ultimate penalty of death by hanging.”

First, there is no power given to a judge to make such a recommendation. Judges ought to refrain from saying or doing things for which they do not have any authority in law. In our view, a judge has no power to give any prospective sentence for an offence a person may commit in the future. These remarks are not necessary and ought to be avoided in the future.

Lawyer for the Appellant: Public Solicitor

Lawyer for the Respondent: Public Prosecutor