Enn v The State [2004] PGSC 36; SC738 (1 April 2004)

SC738

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 3 OF 2003

BETWEEN:

JOSEPH ENN
Appellant

AND:

THE STATE
Respondent

Mt. Hagen: Sevua, Kandakasi, Lenalia JJ
2004: 29th March & 1st April

CRIMINAL LAW – Appeal against sentence – Severity of – Murder – Charge of – Use of bush knife – Attack from back of deceased – Deceased’s head totally severed – Instant death resulting from attack – Sentencing tariff – Sentence of 20 years – Criminal Code s. 300 (1), Ch. No. 262.

CRIMINAL LAW – Appeal against sentence – Powers of Supreme Court on Appeal – Warning on cases of serious nature – Where more severe sentence warranted – Appeal dismissed – Supreme Court Act, s. 23 (4), Ch. No. 37.

Cases cited:
Avia Aihi v. The State; (No. 2) [1982] PNGLR 92.
William Norris v. The State, [1979] PNGLR 605
Goli Golu v. The State; [1979] PNGLR 653
Ure Hane v. The State; [1984] PNGLR 105
John Elipa Kalabus v. The State; [1988] PNGLR 193
Aloises Peter Irobo Kovei v. The State; SC676, unreported, 14th. November 2001
Joe Foe Leslie Leslie v. The State; SC560, 7th August 1998
The State v. Joseph Ulakua; N2240, unreported, 23rd May 2002
Max Java v. The State; SC701, unreported, 20th December 2002
Lawrence Simbe v. The State; [1994] PNGLR 38

Counsels:
Appellant in person.
J. Kesan for Respondent.

1st April, 2004

BY THE COURT: This is an appeal by the appellant against a sentence of 20 years imprisonment imposed on him by the National Court in Kundiawa on 14th November 2002, on a charge of murder of one Mathew Wamina, the deceased, in the course of pursuing an unlawful purpose contrary to s.300 (1) (b) (i) of the Criminal Code.

We heard this appeal on Monday, 29th of March and reserved our decision to today. This is a unanimous decision of this Court.

Before the trial judge were the following facts. On the morning of 17th June 2000, the appellant left his village for Togel village to attend a reconciliation meeting with the aim to resolve an outstanding dispute. In the course of that meeting, the victim, Mathew Wamina and Margaret Daka had an argument and they then fought. Thomas Gend, one of their clansmen stopped the two from fighting. After they were stopped, the deceased walked back to where he was, to sit down. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body.

The medical report made on the deceased on 30th May that same year showed that the deceased sustained a severed neck from a sharp object applied with great force.

Upon arraignment the appellant pleaded guilty and was sentenced to 20 years imprisonment. He now appeals against the sentence of 20 years imposed on him. There are two grounds of appeal. On the first ground, the appellant says that the sentence imposed on him by the trial judge is excessive. The second ground of appeal is that the trial Court did not consider the appellant’s age.

Before we proceed with the appeal, we propose to deal with the grounds of appeal in the reverse order. As to the question of whether or not the trial judge gave consideration to the appellant’s age, we say yes, His Honour did consider the appellant’s age. We note from page 23, lines 41 to 42, and page 25, lines 14, 15 and 16 of the appeal book that the trial judge adverted to your age and again at page 26, lines 20 and 21, the trial judge referred to your age. Not only that the trial judge considered the appellant’s age, but he also took into account all mitigating factors in favour of the appellant, such as he was a first time offender.

On page 24 of the appeal book, His Honour took those mitigating factors into consideration. They include the guilty plea and your family status. We are of the view that the second ground of this appeal has no merit.

We have considered both your written and oral submissions and we are of the opinion that the appellant had no lawful excuse to commit the brutal killing of the deceased.

On the ground of the excessiveness of sentence, it is a principle of law which has been developed by the Supreme Court that, for an appellant to succeed in his appeal, he must show to this Court an error or errors which ought to be either identifiable or unidentifiable which should have the effect of vitiating the trial judge’s sentencing discretion - William Norris v. The State [1979] PNGLR 605. We find that His Honour, the trial judge, appropriately addressed the issue of prevalence of murder cases and a total disregard for human life at pages 23 to 26 of the appeal book.

It is noted here, that the Parliament decided that the penalty for the crime of murder must be life imprisonment. This is the maximum, subject to s. 19 of the Code. A number of cases were cited by the trial judge including that of the State v. Laura (No. 2) [1988-89] PNGLR 98. That was a murder case where His Honour, the late Chief Justice, Sir Buri Kidu, set out appropriate tariffs for murder cases. We agree with the trial judge that since Laura (No. 2) sentences for murder have increased.

We are of the view that the sentencing range established in the above case is no longer appropriate to the circumstances of the country today. There are many murder cases committed now a days by the use of guns, axes and bush knives as in the case of the instant appeal. We agree and adopt the principle that each case of murder ought to considered or determined on its own merit.

A perusal of the facts of this case, this Court considers that there were no special mitigating features in your case. All you did was walked up behind the deceased and chopped his head off. Unfortunately you caught the deceased by surprise suggesting cowardice on your part. You have now come to this Court to seek redress of a lawful sentence imposed on you by the sentencing Court for a crime, which we consider to be the "worst type" case. This is abundantly clear from the context of wilful murder cases discussed in Avia Aihi v. The State (No. 3) [1982] PNGLR 92 and Goli Golu v. That State [1979] PNGLR 653.

To illustrate the serious nature of murder cases and the trend of sentencing so far taken by the National Court and what the Supreme Court has said in appeals, we wish to cite some cases, but first we note from the facts that the crime which the appellant committed can truly be described as the "worst type" case of murder. In Joe Foe Leslie Leslie v. The State; SC560, unreported, 7th August 1998, the appellant was sentenced to life imprisonment for an attempted murder of a policeman in the course of his duty. He appealed to the Supreme Court against excessiveness of sentence. The Court dismissed his appeal. In Aloises Peter Irobo Kovei v. The State; SC676, unreported, 14th November 2001, the appellant appealed against a sentence of life imprisonment. The murder in that case was committed in pursuance of abduction and rape. The trial judge considered that, that was the worse type offence. On appeal the Supreme Court dismissed his appeal although he appeared to be a young offender, but had a criminal record against him.

In The State v. Joseph Ulakua, N2240, unreported, 23rd May 2002, the National Court imposed a sentence of 20 years on the prisoner on a guilty plea to the murder of his wife. In Max Java v. The State; SC701, unreported, 20th December 2002, the appellant pleaded guilty to one count of murder and was sentenced to 20 years. On appeal the Supreme Court confirmed the sentence. We have referred to those cases as we feel that the sentencing trend since Laura (No. 2) up to 1994 in the case of Lawrence Simbe v. The State; [1994] PNGLR 38; in which the Supreme Court applied the sentencing guidelines set out in Laura’s case, in the context of an appeal against sentence of 14 years following a plea of guilty to a murder charge. In any event, guidelines are only guidelines. As can be seen from the above cases, sentences for murder since those cases we have referred to have ranged between 12 years and life imprisonment.

This approach is a reflection of the fact that there is so much of wanton killings and sentences must increase in the hope to deter this heinous crime. We express the view that such conduct cannot be tolerated and the person whom you took away his life prematurely deserves as much right as you to be alive today.

It is a surprise to this Court that the Public Prosecutor chose to indict the appellant with a charge of murder, when in fact, the facts show that the killing in this case was one of those worst type of cases, where the facts did not suggest that a charge of murder be preferred. And the reasons we say that is because despite the accused saying, he did not mean to kill the deceased, and that had he had a stick he could have used it to hit the victim, he applied the bush knife with such force so much so that the deceased’s head was totally severed. We consider that he used the sharp edge of his long bush knife to demonstrate his intention to kill. Therefore, an indictment charging him with wilful murder would have been appropriate in this case. The Public Prosecutor should have charged the appellant with wilful murder.

Due to the serious nature of the killing, we are of the view that there ought to have been a cross-appeal by the Public Prosecutor against inadequacy of sentence pursuant to s.24 of the Supreme Court Act and Order 7 Rules 26 - 28 of the Supreme Court Rules. We ought to give this warning now that in cases involving serious circumstances of aggravation, like in the present case, the Court is empowered by s.23(4) of the Supreme Court Act to vary a sentence to make it more or less severe. The above provision states:

"On an appeal against sentence, if the Supreme Court is of opinion that some other sentence whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal."

We are of the view that in the light of many of these unmeritorious appeals, the Supreme Court ought to exercise its power under the above provision to vary a sentence to make it more severe. Having considered the two grounds of the present appeal, and upon perusal of His Honour’s judgment we are satisfied that the trial judge carefully considered the sentencing principles in relation to sentences in murder cases. We are therefore of the view that, in order for the appellant to invoke the powers of this Court to overturn the decision of the trial judge, the onus is on him to demonstrate the existence of an identifiable or unidentifiable error or errors on the part of the trial judge in his sentencing discretion. We find there were no such errors on His Honour’s judgment. Accordingly, we dismiss this appeal and confirm the sentence of 20 years imposed on the appellant on 14th November 2002.
_____________________________________________________________________
Lawyer for Appellant: Appellant in person.
Lawyer for Respondent: The Public Prosecutor