Vali v State [2007] PGSC 31; SCRA 61 of 2004 (29 June 2007)

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 61 OF 2004

BETWEEN:

JOHN VALI
Appellant

AND:

THE STATE
Respondent

Waigani: Salika, Lay & Gabi, JJ.
2007: 28 & 29 June

CRIMINAL LAW - appeal against sentence - murder - deceased attacked with fists and timber - deceased suffering 11 broken ribs and abandoned unconscious but breathing several kilometres from help - some preplanning - sentence at trial 25 years in hard labour - no error demonstrated - sentence not disturbed.

Appearances
Appellant in person
F. Auka, for the State

1. BY THE COURT: Before the National Court on 22 July, 2004, the appellant John Vali pleaded guilty to the murder of an expatriate man by the name of John Tidy on 30 September 2001. He was sentenced to 25 years in hard labour and appeals against the sentence.

2. Sometime after the death of John Tidy his body was found partly decomposed on the Papa/Lealea Road some metres past Koukou. The autopsy showed that six ribs on his left side and five ribs on his right side were broken. The only version of events leading up to the death of John Tidy comes from John Vali.

3. John Vali was a former employee of John Tidy and claimed to be due some wages from him. He said in his confessional statement that on the 30 September, 2001, he got a lift from John Tidy near John Tidy's residence at Koki to raise with him his present need for financial assistance and his outstanding wages. John Vali said that at some stage during the journey he persuaded John Tidy to let him drive. He drove into the place where the body was found, forced John Tidy out of the vehicle, bashed him with his fists and when John Tidy fell down John Vali hit him on the head three times with a piece of wood. He then drove away in John Tidy's vehicle. John Vali said that when he left John Tidy he was still breathing.

4. Some days later John Vali saw a report in the newspaper that John Tidy was missing. He removed the radio from the vehicle and then abandoned it at a church. On the 9th of October, 2001, John Vali, after his wife and parents had been picked up by the Police for questioning, walked into the Boroko Police Station and made his confession.

5. The appeal is against sentence and the grounds of appeal are, with some amplification of the grounds in the notice of appeal to assist with the meaning, that the trial judge:

1. did not examine John Vali's submission and the nature of the case before sentencing him;

2. did not give sufficient credit for the fact that John Vali surrendered to the CID Homicide Squad at the Boroko police station; that John Vali admitted everything; and that he had no intention to kill the deceased John Tidy;

3. did not give sufficient credit for the fact that John Vali is a first-time offender with no criminal record.

6. The appeal was filed within the 40 days permitted by Section 17 of the Supreme Court Act. Leave to appeal against sentence is not required, Supreme Court Act Section 22 (d), having been struck down by the case of Jim Kas v The State (1999) SC 772.

7. On an appeal against sentence the appellant must show that there was an error by the trial judge which permits the appellate court to interfere with the sentencing discretion of the trial judge. Errors which might be made by the trial judge are:

• mistake of fact:
• acting on a wrong principle of law;
• taking into account irrelevant matters;
• failing to take into account relevant matters;
• clearly giving too much or not enough weight to matters taken into account.
  

8. Even if no error can be identified, if the sentence is out of all proportion to the crime, error will be inferred: See Norris v The State [1979] PNGLR 605 at 612-613 per Kearney J. and Gimble v The State [1988-89] PNGLR 271 at 272.

9. The maximum penalty pursuant to Section 300 of the Criminal Code for the crime of murder, is life imprisonment. A few months before John Vali was sentenced, the Supreme Court considered sentences for murder in the case of Simon Kama v The State (2004) SC 740 and it suggested that on a plea of guilty, with aggravating factors, other than the use of firearms and the committing or attempting to commit another offence, a range of sentence from 22 years to 30 years was appropriate. The following year in the case of Manu Kovi v The State (2005) SC 789 the Supreme Court suggested that for a pre-planned vicious attack with a stronger desire to do grievous bodily harm the proper range of sentence is between 20 and 30 years.

10. In his brief reasons for sentence, the trial judge said "I have considered the factors and the circumstances produced by each side to help the court and I decline to impose life sentence in this case." Earlier His Honour considered the circumstances that John Vali had driven the deceased to a remote place, into an isolated side road, bashed him up to the extent that six ribs on the left side and five ribs on the right side broke and then left him and expected him to walk several kilometres. His Honour considered the circumstances of the case showed an extreme situation and demonstrated on the part of John Vali an arrogant and selfish attitude.

11. It is not necessary for a trial judge to recite every single point which counsel has made to establish that the trial judge has taken that point into account. The trial judge has said that he did take into account the arguments produced by each side. John Vali has not demonstrated that the trial Judge did not take his submissions and the mitigating factors into account. "... if the sentencing judge does not expressly refer to all the matters urged in mitigation before him, it is not to be inferred that he has not taken them into account; the proper presumption is that he has considered each important matter put before him, and given it due weight, it is for the appellant to show that this did not occur, or that some error was made in the process.": See Avia Aihi v The State (No. 3) [1982] PNGLR 92 Kidu CJ, Kearney DCJ, Greville-Smith J. Andrew J., and Kapi J. per Kearney DCJ.

12. In law the trial judge was entitled to sentence up to life imprisonment. On the authority of Simon Kama v The State, a sentence of up to 30 years would not be wrong. The death resulted from what was clearly a vicious attack. There was pre-planning, John Vali, won the confidence of John Tidy who allowed him to drive. John Vali did that for the very purpose of being able to drive the vehicle to a remote place to carry out his plan of attack. The sentence imposed by the trial judge was well within the range permissible on a plea of guilty in the circumstances of this case. The submission that John Vali did not have an intention to kill is irrelevant, the proof and presence of such an intention being an element of the more serious crime of wilful murder.

13. We find that John Vali has not demonstrated any error on the part of the trial judge and we decline to interfere with his sentencing discretion.

ORDERS:

1. The appeal is refused;
2. the sentence of the trial judge is confirmed.
   

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John Vali in person
Public Prosecutor: Lawyer for the State