Wanege v The State [2004] PGSC 22; SC742 (1 April 2004)

SC742

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 35 of 2003

KEPA WANEGE

-V-

THE STATE

MT. HAGEN: SEVUA, KANDAKASI, LENALIA, JJ.
2004: 31st March
1st April

APPEAL – PRACTICE & PROCEDURE - Appeal against sentence – Supreme Court cannot interfere unless a clear case of error is demonstrated – Lenient sentence imposed – No error vitiating the trial judge’s exercise of discretion – Warning that Supreme Court will exercise its powers under s.23(4) of the Supreme Court Act Chp.37 whether or not the Public Prosecutors cross-appeals and asks for it given more unmeritorious appeals coming through resulting in wastage of limited public funds and Courts limited time.

CRIMINAL LAW – PRACTICE & PROCEDURE – No case ruling without hearing parties – Highly irregular practice that should not be repeated - The prosecution and the defence must be first heard before Court arrives at a decision – Failure to do so amounts to serious miscarriage of justice as a decision against the prosecution puts an end to its case for good as it does not have any right of appeal – National Court as a discretion to arrive at such a decision but must be arrived at only after having heard the parties and giving careful consideration to the evidence before and only in the clearest of cases – Effect of ruling on co-offender – No bar for Court to note the offence committed in the company of another.

CRIMINAL LAW – Appeal against sentence – Murder –Offence committed over a land dispute – Deceased attacked from the back by two men – Axe use to effect fatal blow – Deceased dying from axe wound at the scene shortly after the attack - Guilty plea - First time offender – No prove of customary compensation paid – Aggravating factors outweigh factors in mitigation – Sentence of life imprisonment warranted – Sentence imposed too lenient – No Cross-appeal or argument for increase in sentence – Sentence of 20 years confirmed with warning that in future the Supreme Court will exercise its powers under s. 23(4) of the Supreme Court Act (Chp.37).

Facts:

This was an appeal against a sentence of 20 years less time spent in custody on a guilty plea to a charge of murder on grounds of excessiveness and failure to take into account claims of compensation payment and surrendering to authorities. The appellant did not raise the issues of compensation and surrendering to authorities before the trial judge. The appellant and his father had an argument with another person now deceased, over a piece of land. On the day of the offence, the deceased took some tree branches for firewood from the disputed land. The appellant and his father followed the deceased from behind, attacked the deceased, cut the deceased on his head with an axe twice, and hit him all over his body with sticks resulting in serious injuries to his body. The deceased eventually died from the injuries he received to his head. The father pleaded not guilty to the charge and following a short trial, the National Court acquitted him on its own volition without allowing parties to make any submissions. The trial judge found that the medical report spoke of a single wound as opposed to two wounds separately inflicted upon the deceased according to the oral testimony of witnesses who said the appellant and his father cut the deceased twice on the same spot.

Held:

1. The learned trial judge committed a serious irregularity and therefore a serious error when:
   
   • (a) he decided that the appellant’s father did not have a case to answer on his own volition and in so doing denied the parties and in particular the prosecution which case had to end its case at that stage the right to be heard first before arriving at that decision; and
     
   • (b) there was evidence of the appellant’s father acting in concert with the appellant pursing a common purpose within the meaning of ss.7 and 8 of the Criminal Code and therefore had a case to answer.
     

The practice adopted by the learned trial judge was highly irregular and as such it should never be adopted. Distinguished Joshua Yaip Avini and Plaridel Nony Acosta v. The State (15/07/97) SC523.

2. The issue of surrendering to authorities was not an issue raised before the trial judge, and that precluded the appellant from raising it on appeal because in fairness, the learned trial judge had no opportunity to consider it and arrive at a decision.
   
3. The sentence of 20 years was lenient given the current sentencing trends and the seriousness of the offence. The sentence was therefore not excessive.
   
4. In the circumstances, the learned trial judge did not fall into any identifiable error against the appellant that vitiated the exercise of the learned trial judge’s sentencing discretion and therefore warranting an inference by the Supreme Court of the exercise of that discretion in the terms asked for by the appellant. The Supreme Court therefore dismissed the appeal and confirmed the sentence imposed by the National Court.
   

Cases cited:
The State v. Darius Taulo (10/01/01) N2034.
Sakarowa Koe v. The State (SCRA 47 of 2003).
The State v. Fredinand Naka Penge (24/05/02) N2244.
Jimmy Ono v. The State (04/10/02) SC698.
Wanosa & Ors v. The Queen [1971-72] PNGLR 90.
Norris v. The State [1979] PNGLR 605.
Ian Setep Napoleon v. The State (unreported judgement delivered on 18/05/0) SC666.
Joshua Yaip Avini and Plaridel Nony Acosta v. The State (15/07/97) SC523.
State v. Laura (No. 2) [1988-89] PNGLR 98.
Simbe v. The State [1994] PNGLR 38.
The State v. Joseph Ulakua (23/05/02) N2240
The State v. Tony Pandau Hahuahori (No 2) (21/02/02) N2186.
The State v Tom Keroi Gurua & Ors (11/12/02) N2312.
The State v. Kevin Anis and Martin Ningigan (07/04/03) N2360.
The State v. Dominic Mangarik (29/04/03) N2368.
The State v. Raphael Kimba Aki (N0. 2) (28/03/01) N2082.
Max Java v. The State (20/10/02) SC701.
The State v. Saku Sogave (15/12/00) N2086.
Simon Kama v. State, SCRA 34 0f 2001 (delivered 01/04/04).

Counsel:
Appellant in Person.
Mr. R. Auka for the Respondent.

1st of April, 2004

BY THE COURT: Kepa Wenege, you are appealing against a sentence of 20 years less the time you had already spent in custody awaiting your trial for murder, which the National Court imposed on 09th April 2003. Sixteen days later, you lodged your appeal against that sentence.

In your notice of appeal, you specify the grounds of your appeal as follows:

"1. Sentence too excessive.

2. Compensation payment was fully paid to the deceased relatives.
3. Surrender to State authorities."
   

A close look at these grounds of your appeal reveals in our view, that there is only one ground of appeal, namely, "the sentence of 20 years is excessive given the full payment of compensation and you surrendering to the authorities".

Before the hearing of the appeal on its merits, you applied through your lawyer to add a new ground. The ground you sought to add was "the learned trial judge made a procedural error when he took into account the sworn evidence in the trial of the co-accused, Wenege Mauvita, in arriving at the conviction against the appellant and eventually the sentence". We dismissed that application because we were of the view that, you through your lawyer failed to demonstrate the legal and factual foundation for the application.

Now returning to the grounds that are in your notice of appeal, we first deal with the compensation and surrendering to authorities’ issues, as they are easy to dispose off without much of a difficulty. With regard to compensation, the law is that the payment of any compensation does not excuse an offender from his criminal liability. Instead, in appropriate cases, it can only be a factor in mitigation. A recent statement of the legal position is by Kandakasi J in The State v. Darius Taulo[1] in these terms:

"... only if an offender personally attends to paying compensation, he would be entitled to argue for that to be taken into account has a factor going in his favour and in his mitigation. But under no circumstances should compensation be a substitute to penalty. This is to avoid wealthy or well to do criminals from buying their way out of their criminal responsibilities and render the whole purpose and or functions of criminal law sentencing useless and or meaningless."

Compensation can be taken into account as a mitigating factor only when there is appropriate evidence confirming, the payment of any compensation, including the amount paid, when, by whom and to whom. We pointed this out in the decision we have handed down just a while ago today in Sakarowa Koe v. The State.[2]

In your case, you informed the National Court during your address on sentence, about a compensation payment consisting of 70 pigs and K300.00. You then provided two documents from two leaders in the community. The Court wanted some verification of this and asked for a pre-sentence report with specific directions for inputs from the deceased relatives on the compensation issue. Eventually, the Court received a pre-sentence report, which had inputs only from your side and nothing from the deceased side. The Court therefore rejected the report and consequently, it rejected your claim of having paid customary compensation.

You did not demonstrate where or how the learned trial judge erred. The law is otherwise clear as to how a pre-sentence such as the one specifically requested by the Court in your case, should be approached. A recent statement of that position is by Kandakasi J., in The State v. Fredinand Naka Penge[3] in these terms:

"In The State v. Rex Rongo (20/12/00) N2035, I rejected a pre-sentencing report that had no input from independent members of the community. I did that because of the tendency in human beings to speak only in support of their relatives or friends especially, when they know that whatever they are going to say will affect the freedom of persons like you. In order for a pre-sentencing report to be truly reflective of the community’s position there must be inputs from people having no personal interests in the sentence a prisoner should receive as well as inputs from family members and relatives who have such interests. A report without such inputs is therefore unreliable ..."

In your case, there was no verification by the relatives of the deceased of your compensation payment claim. That was despite the Court’s specific request for it. Given that, we find that the learned trial judge did not err when he decided not to accept your claims of paying compensation. We therefore find that, there is no basis for your complaint on the compensation issue. Accordingly, we dismiss this ground of your appeal.

With regard to your claim of surrendering to the authorities’ issue, we note that, you did not raise this in the National Court. You are therefore raising this issue before this Court for the first time. This Court has not allowed in the past issues not raised in the Court below to be raised as a ground of appeal as indicated for example by the judgment in Jimmy Ono v. The State.[4] We see no reason why we should not do the same in your case. Accordingly, we reject this complaint or ground of your appeal. The rationale behind this rule is that, in fairness the parties must give the National Court an opportunity to consider all of the issues between the parties and arrive at a decision. Further, appeals from the National Court to the Supreme Court are in respect of a decision of the National Court to the exclusion of anything not put to it in the normal way before sentence.

There is a further reason to reject this complaint. According to the evidence, you were on the run for almost a year. On 25th July 2000, you were sighted at the PJV main office and following a tip off, you were apprehended there and locked up in the police cells before having you formally charged and brought to trial.

This now leads us to the remaining issue of excessiveness of the sentence. At the outset of this judgment, we took the view that, this issue was dependant on the compensation and surrender issues. It should follow therefore that, the Courts decision in relation to those issues should dictate the Court’s decision in relation to the issue now under consideration. Nevertheless, on a close consideration of your submissions, it seems you are raising this as a separate ground of your appeal. Accordingly, we will now proceed to consider it separately.

Where there is an appeal on the grounds of excessiveness of sentence, the law clearly is that, the Supreme Court cannot readily disturb a sentence imposed by a trial judge unless an appellant demonstrates a sentence to be manifestly excessive. A sentence could be manifestly excessive where, for example, the trial judge has acted on a wrong principle of law or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence.[5] That means, this Court must be satisfied that the learned trial judge fell into some demonstrable error, which has the effect of vitiating the trial judge’s discretion on sentence before it can change a sentence imposed by the National Court.[6]

The question of, whether the sentence appealed against is excessive, requires an examination of the relevant facts and the kind of sentences in similar cases to appreciate the relevant sentencing tariff. We will therefore consider these aspects, in that order.

The relevant facts in this case are straightforward. These are that, on 18th October 1999 at Ipandaka village at Porgera District, Enga Province you and your father, Wenege Mauvita had an argument with the deceased, a Tindip Peiyepa. The argument was over some tree branches, taken out of a tree located in a piece of land that was in dispute between you and the deceased side. The deceased had cut down the branches for firewood and was taking them to his house.

As the deceased was walking toward his house, you and your father followed him from his back and cut him on his head with an axe using the sharp cutting edge part two times. The first was by your father after which, he tackled the deceased onto the ground. Then as the deceased was on the ground, you cut the deceased the second time with an axe, in the same position your father had cut him. This is why the medical report spoke of only one axe would. We find that the learned trial judge erred in ruling that your father had no case to answer.

We find with concern that the procedure the learned trial judge employed to arrive at that decision was highly irregular. One of the cardinal requirements in our system of justice is fairness to all the parties to a dispute. In this case, the learned trial judge did not give either of the parties to address it or make submissions on the question of whether or not there was a case for your father to answer before deciding on his own volition that he had no case to answer. Given that the prosecution’s case had to end at that stage, it was incumbent upon the learned trail judge to hear the prosecution on the proposed ruling. This was critically important because, it was unlike the situation in Joshua Yaip Avini and Plaridel Nony Acosta v. The State.[7] There the same learned trial judge refused to entertain a no case submission, continued with the trial and eventually convicted the appellant, which practice the Supreme Court approved. Here, the learned trial judge ended the prosecution’s case without hearing it. With respect, this was clearly a very serious irregularity because the learned trial judge denied the people through the State their right of address before a decision on such a very serious out come. It was also very serious considering that, the State has no right of appeal against a decision dismissing an indictment. It is not the same has refusing to entertain a no case submission because, the defence still has the opportunity to go into evidence, if it wishes and then make submissions at the end of the evidence before there can be a final decision on a charge. The learned trial judge clearly erred in the approach he adopted, in this case resulting in the serious consequence of freeing an otherwise guilty person.

We say guilty person because, the learned trial judge did not take into account the fact that, the oral evidence spoke of two attacks on the deceased on the same spot by an axe. Of course, two axe attacks on the same spot would result in one wound as opposed to two wounds. The transcript of the learned trial judge’s reasons for ruling that, there was no case for your father to answer clearly shows that, the learned trial judge did not consider this being a real possibility. The failure to give the prosecution an opportunity to address the Court, denied the Court of the possibility of the prosecution pointing this out and the Court considering it.

Further, even if there was no evidence showing that your father cut the deceased, he was no doubt acting in concert with you, pursing a common purpose. Accordingly, there was a case for him to answer in respect of the charge against him under ss. 7 and 8 of the Criminal Code. The transcript does not reveal the learned trial judge considering any of these aspects.

Considering all of these, we state in the strongest term possible that this practice adopted by the learned trial judge is a highly irregular one. Trial judges and for that matter, all decision makers should not follow this practice. Instead, they should all recognized and uphold the basic requirements of justice and that is to hear a party or a person first before any decision against him or her is arrived at. The National Court being a Court that has the supervisory powers of review of all decisions of other lower tribunals and administrative authorities, it should be the least of all decision makers to ignore this basic aspect of administering justice.

Now returning to the facts of your case, we note that after you and your father had cut the deceased on the head twice on the same spot, you proceeded to hit the deceased all over his body with a piece of branch from the branches the deceased had been carrying. Eventually, the deceased died from the injuries you inflicted upon him. Meanwhile, you were on the run until the 25th of July 2000, when you were sighted at the main PJV office and apprehended.

With these facts in mind, we now turn to considering the sentencing trend in murder cases. In this regard, we note that, what needs to be said has already been said in the case of Sakarowa Koe v. The State.[8] Accordingly, we will only repeat what we have already said in that case with variations, where necessary to suit your case.

Parliament considered the offence of murder, regardless of whatever the circumstances are, serious and prescribed life imprisonment as the maximum penalty. However, the Courts have imposed sentences far short of that, an approached strengthened by the National Court judgment in The State v. Laura (No. 2).[9] That judgment suggested the following guidelines for sentencing in murder cases:

(a) where there is a guilty plea with no special aggravating factors, a sentence of six years;

(b) a sentence of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and

(c) on a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

The prisoner in that case pleaded not guilty to a charge of murder under s.300 (1)(a) and was found guilty after a trial. He received a sentence of eight years where there were any special factors neither in aggravation nor in mitigation.

Later, the Supreme Court in, Simbe v. The State[10], adopted the above guidelines and applied them. That was in the context of an appeal against a sentence of 14 years following a plea of guilty to a charge of murder.

Since then, there has been an increase in sentence for murder cases. In The State v. Joseph Ulakua,[11] the National Court imposed a sentence of 20 years. In that case, the prisoner killed his wife after she had run away from him, after allegedly having an affair with some men in the prisoner’s own village. He pleaded guilty to the charge and had no prior conviction.

Prior to the above judgment Sevua J imposed on a guilty plea a sentence of 30 years against two prisoners. The two of them with others killed the driver of a motor vehicle who failed to stop at a roadblock they set up to rob motor vehicles and their passengers. Kandakasi J. in The State v. Tony Pandau Hahuahori (No 2)[12] acknowledged that, when dealing with their co-offender who pleaded not guilty but convicted after a trial. The Court found the prisoner there as the gunman that shot the deceased and imposed a sentence of life imprisonment.

A few months later, Kirriwom J, in The State v Tom Keroi Gurua & Ors.,[13] imposed a sentence of 50 years and 20 years imprisonment against the prisoners. The 50 years was against the gunmen who shot the deceased who had gone to the aid of his daughter whom those men tried to abduct. They were respectively aged 18 and 20 years old.

One of the prisoners, David Laim Bawai has appealed against his sentence of 50 years. This Court heard his appeal in this circuit and handed its decision a while ago today dismissing the appeal on the basis that the sentence he received was too lenient. He should have received the maximum of life imprisonment given the seriousness of the offence and the increase in these types of offences.

Prior to the above case, Kandakasi J. in, The State v. Kevin Anis and Martin Ningigan,[14] imposed a sentence of 37 years against the prisoners. In that case, the prisoners were part of a gang that carried out an armed hold up on the Sepik Highway with intend to rob the motorist on the highway. They set out to execute the planned robbery but it went bad resulting in the killing of a passenger and the wounding of another. This was after a trial. They were not the gunman doing the killing and wounding. His Honour observed and we agree that:

"This clearly shows a trend of increased sentences, especially in cases where a person is killed in the course of pursuing another unlawful purpose. Likewise, there is an increase in the kind of sentences that are being presently imposed against armed robbers. This is reflective of the fact that there is so much killing, almost every day in the course of other unlawful purposes such as armed robberies. This is disastrous for our country. The adverse effects of such violent crimes as murder, armed robbery and rape on the country as a whole, has been adequately expressed in numerous judgments of both this and the Supreme Courts,... It is not necessary to repeat them. Sufficient only to say that society is saying enough is enough and that such offenders should be dealt with severely."

We also agree with his Honour in The State v. Joseph Ulakua[15] where he said:

"Parliament made no mistake in prescribing life imprisonment for someone who takes away any other persons life without any lawful excuse or one that is not permitted by law. The onus is therefore ... on a prisoner to show why he should not be given the prescribed sentence and make a case for it. Yes, of course, some might argue that this suggestion goes contrary to the presumption of innocence. The response simply to that is, take a good look at the wording in the relevant provision of the Constitution and you find that, that presumption is only in relation to guilt. Once guilt is established or admitted, the presumption no longer exists."

Notwithstanding all of these, you through your lawyer argue for a reduction of your sentence to 12 years. In support of that submission, you rely on the judgments of Kandakasi J., in The State v. Dominic Mangarik[16] and The State v. Raphael Kimba Aki (N0. 2)[17] where sentences of 12 years were given for manslaughter and murder respectively.

In the first case, it was a guilty plea to murder. It was also a case of an argument over land. The prisoner attacked an unarmed man with a bamboo spear once on the chest. The victim died because of that attack. The prisoner also tried to spear the deceased’s brother using the same bamboo after taking it out from the deceased.

In the second case, there was conviction after a trial. The prisoner was a married man who went looking for his girlfriend in the night at her brother’s house. The girlfriend discovered the prisoner’s intrusion into the deceased house and she sounded the alarm. Instead of escaping, the prisoner turned around and stabbed his girlfriend’s brother. Prior to the incident, the prisoner had arguments with the deceased’s family and that he had written to them threatening to harm them if they stood in his way of reaching his girlfriend.

After the judgment in the second case and before the judgment in the first case, the Supreme Court in Max Java v. The State,[18] held that a sentence of 20 years was not excessive. It reasoned that, "[h]aving regard to the prevalence of violent offences in the community, we cannot concluded that the sentence is excessive."

That was a case in which the applicant returned home and was informed that the deceased had destroyed his garden. Therefore, the applicant went looking for the deceased armed with a grass knife. On seeing the applicant coming, the deceased started to run away and the applicant pursued him, caught him and cut him several times with the grass knife causing severe injuries. The deceased later died of massive blood loss from the injuries he sustained from the applicant.

The National Court was not aware of this judgment of the Supreme as the parties did not draw it to the attention of the National Court before its decision in The State v. Dominic Mangarik.[19] Therefore, it did not have any regard to it. We are of the view that, if the National Court were aware of the decision of the Supreme Court, it would have arrived at a different decision on sentence.

As for the judgment in The State v. Raphael Kimba Aki (N0. 2),[20] the Supreme Court judgment has clearly overtaken that. On our part, we agree that the level of violence and crime in the community has increased dramatically. Crimes of violence are now prevalent and as such strong deterrent sentences are called for. We reiterate the view that, murder cases should attract sentences beyond those given in manslaughter cases. The main reason for that is the fact that, wilful murder and murder has an element of an intention to kill or to cause grievous bodily harm. Manslaughter does not have either of these elements. However, we note that, the Public Prosecutor has been presenting indictments for manslaughter in cases where there clearly ought to have been an indictment for wilful murder or murder. An example this happening is the case of The State v. Saku Sogave,[21] referred to us by your lawyer. There, the prisoner had clearly intended to cause grievous bodily harm. Notwithstanding that, the indictment for him was manslaughter instead of murder.

In your case, you and your father attacked, an unarmed man from the back with an axe. The deceased was carrying branches of a tree toward his house for firewood. He was obviously in no position to know of your following him until you had attacked him. There is no evidence that you gave him an opportunity to defend himself. The witness statements say you struck the deceased twice on the same spot by an axe, one of these was by you and the other was by your father. We already stated that, the learned trial judge erred in ruling that your father had no case to answer because the procedure adopted was highly irregular and in any case, he did not properly consider the evidence before him.

It seems clear to us that, given your dispute over the land from which the deceased had gathered tree branches for firewood, you were intent on killing the deceased. This is evident by the fact that you used a dangerous weapon, an axe twice on the deceased head, which is a very vital part of a human being. You then proceeded to inflict further injuries to the then seriously injured deceased with a tree branch all over his body. He died because of your attack on him.

The law provides for the peaceful resolution all disputes. In the case of land disputes, there is specific legislation providing for the resolution of dispute, particularly over customary land, which we believe was the case here. You produced no evidence of any attempts you might have made to utilize the process provided for by law. Instead, it seems you were intent on killing the deceased so you could no longer have any dispute with him over the land. This kind of behaviour is unacceptable after more than 20 years of independence and the Christian principles forming an integral part of the foundation of our nation.

As noted already, the society is now seeing a high level of violent offences. This is having an adverse impact on the country’s quest for progress. You are one of those responsible for this adverse impact. Given that, people of your type who are prepared to resort to violence to resolve problems instead of peaceful means already provided for by the society through its laws, deserve severe penalties to help deter both yourself and others. We have in the case of Simon Kama v. State,[22] recommended increases in the range of sentences to keep pace with the number and frequency of this kind of offence. We adopt and endorse them here.

Bearing those guidelines in mind, we note, you are fortunate that, you received 20 years and not the maximum prescribed sentence of life imprisonment. If there was a cross-appeal or a submission for an increase in the sentence, we would have readily increased your sentence to a term well beyond what you have in fact received, in the exercise of the powers vested in the Supreme Court by s.23(4) of the Supreme Court Act.[23] We repeat the warning already issued during this circuit inclusive of today that, in future, this Court would exercise that power, whether or not there is a cross-appeal and an argument for an increase in the sentence by the Public Prosecutor, for the reasons already given.
________________________________________________________________
Lawyers for the Appellant: In Person
Lawyers for the Respondent: The Public Prosecutor

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^[1] (10/01/01) N2034.
^[2] (SCRA 47 of 2003).
^[3] (24/05/02) N2244.
^[4] (04/10/02) SC698
^[5] See Wanosa & Ors v. The Queen [1971-72] PNGLR 90.
^[6] See Norris v. The State [1979] PNGLR 605 and also Ian Setep Napoleon v. The State (Unreported judgment delivered on 18/05/0) SC666.

^[7] (15/07/97) SC523.
^[8] Supra note 2.
^[9] [1988-89] PNGLR 98.
^[10] [1994] PNGLR 38.
^[11] (23/05/02) N2240.
^[12] (21/02/02) N2186.
^[13] (11/12/02) N2312.
^[14] (07/04/03) N2360.
^[15] Supra note 6.
^[16] (29/04/03) N2368.
^[17] (28/03/01) N2082.
^[18] (20/10/02) SC701.
^[19] Supra note 14.
^[20] Supra note 15.
^[21] (15/12/00) N2086.
^[22] SCRA 34 of 2001 (delivered 01/04/04).
^[23] Chp.37.