Giamur v State [2007] PGSC 7; SC884 (23 February 2007)

SC884

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 39 OF 2004

BETWEEN:

JOE GIAMUR
Appellant

AND

THE STATE
Respondent

Kokopo & Kimbe: Sevua, Kandakasi, and Gabi, JJ.
2006: 30 August
23 February

APPEALS – PRACTICE & PROCEDURE – Power of the Supreme Court on appeal – Power to increase sentences – Sentence imposed by trial judge below guidelines recommended by the Supreme Court – No reason offered for departing from set guidelines and tariffs - National Court sentence quashed and substituted – Section 23 (4) Supreme Court Act (ch 37).

CRIMINAL LAW – Appeal against sentence – Manslaughter - Guilty plea – Repeated punches – Causing broken neck and rapture of spleen - Trial judge imposed 7 years with 12 months suspension - Sentence manifestly low and inconsistent with sentencing tariffs and guidelines set by the Supreme Court – No reason offered for departing from - Sentence increased to 14 years in hard labour – Section 302 Criminal Code.

CRIMINAL LAW - PRACTICE & PROCEDURE – National Court bound by decisions of the Supreme Court – National Court bound to follow guidelines or sentencing tariffs set by the Supreme Court except for good reason sound in law – Failure amounts to identifiable error liable for set aside by the Supreme Court – Schedule 2.9 (1) of the Constitution – Section 23 (4) Supreme Court Act.

CRIMINAL LAW - PRACTICE & PROCEDURE – Suspension and deduction of sentence – Court under duty deduct pre-trial custody period from head sentence – Court has no power to suspend any sentence unless a pre-sentence report supports it – Suspension without support of pre-sentence report invalid and liable to set aside on appeal – Section 3 (2) of Criminal Justice (Sentences) Act 1986 - Section 19 (1) and (6) of the Criminal Code.

Cases Cited:

Norris v. The State [1979] PNGLR 605.
Acting Public Prosecutor v. Uname Aumane & Others [1980] PNGLR 510.
Acting Public Prosecutor v. John Airi (24/11/81) SC214.
Orosa Pogu v. The State [1986] PNGLR 203.
The State v. Polin Pochalon Lopai [1988-89] PNGLR 48.
The State v. Polin Pochalon Lopai [1988-89] PNGLR 48.
The State v. Rex Lialu [1988-89] PNGLR 449.
Rex Lialu v. The State [1990] PNGLR 487
James Pangnan & Patrick Ponat v. The State (SCRA 39 & 54 OF 2004, delivered on 30th August 2006,)

Counsels:

Appellants in Person.
Mr. L. Rangan, for the Respondent.
23 February, 2007

1. BY THE COURT: You are appealing against a sentence of 7 years with 1 year of that suspended by Justice Mogish on 14 May 2004 on your guilty plea to one charge of manslaughter under s. 302 of the Criminal Code.

The Relevant Facts

2. The facts giving rise to the charge, your guilty plea and eventually your conviction and sentence are these. In the early morning hours of 24 November 2001, you went to your house at Block No. 341 Section 4, Kapore Oil Palm Settlement in Kimbe after a home brew drinking session. Whilst having your meal you quarrelled with your then wife, now deceased, Carol Ian. That developed into a fight in which you used your fists to fight the deceased. The deceased eventually gave up her last breath and passed away. She was then taken to the hospital and was pronounced dead on arrival. According to a medical report, the deceased sustained bruises to her right elbow and face areas and died as a result of ruptured spleen due to trauma. The medical report does not state whether the deceased had a normal size or swollen spleen. It has already been judicially noted in our jurisdiction that, a normal size spleen would require the application of substantial force to rupture it.[1] It follows therefore that, in the absence of any evidence to the contrary; we are of the view that the deceased spleen ruptured due to your punching her.

3. You were eventually arrested and charged with the unlawful killing of the deceased. From the judgment of the trial judge, it is also clear that you have been charged with another unrelated offence before, which was dealt with a little earlier by the same judge. The judgment notes that, you committed the offence of stealing with violence. You fought and fractured a rib and broke two of the victims tooth. Hence, this was not the first ever instance of you getting drunk and becoming violent.

4. In retaliation of your killing the deceased, her relatives burnt down 5 houses belonging to you and your relatives, destroyed several other properties and even stole some of them. Further, you were stabbed in your chest area which required medical treatment, after which you recovered without much of a disability. You and your people paid customary compensation of K2,000.
Your Appeal

5. In your notice of appeal, you set out your grounds of appeal as follows:

"A) The presiding judge didn’t seem to consider medical grounds presented by my defence council.

B) My family concern report for wilful damage to parties in retaliation for the death of my late wife. Total damage value at a cost of roughly K100,000.00.

C) Lastly the court didn’t deduct the time spent in custody as a remandee. My time so spent in custody was one year and five months.

(I) I hereby give notice of appeal and notice of application for leave to appeal against the above decision on the grounds as stated.

(II) Application for leave as it may pertain to this appeal is sought.

(III) Such further grounds as may be considered necessary may be added to this notice following legal advice give to me."

6. In the first two grounds of your appeal, you are claiming effectively that, the learned trial judge did not take into account your medical condition as well as the wilful damage done to your property caused by the deceased relatives, before imposing the sentence the learned trial judge imposed against you. Under your third ground of appeal, you are claiming that the learned trial judge did not take into account and deduct from the head sentence your pre-trial custody period of 1 year and 5 months.

7. The next three points you raised are not grounds of your appeal. You are merely giving notice of your appeal in the first point and seeking leave of this Court where leave is required in the second point. In the third point, you are giving notice that, you may raise other grounds of appeal as they may become available to you. As it is, your third point can not be a ground of appeal because; an appellant is required to specify his grounds of appeal with sufficient particulars in order for the opposing party and the Court to appreciate the basis for the appeal. Thus a purported ground of appeal in the terms you set out in your third point means nothing and is not a proper ground of appeal. This Court has taken that position in many cases already as in the case of Sakarowa Koe v. The State.[2] In the circumstances we will disregard your three additional points when considering the grounds of your appeal.

States Response

8. In response to your appeal, the State submits that the trial judge did in fact take into account your medical condition as well as the damages done to your properties. In any event the State submits that, you did not provide any evidence of the full extent of the damage to your properties and their estimated value. Accordingly, the State submits that, your claim of damages up to K100,000 is a new invention. In the circumstances, the State submits that, this Court should dismiss the first two grounds of your appeal as having no merit. It further argues that, the sentence you received is manifestly low. Accordingly, it argues for this Court to increase the sentence pursuant to s. 23 (4) of the Supreme Courts Act.[3]

9. As for the third ground of your appeal, the State concedes that the learned trial judge did fall into an identifiable error. Hence, the State submits that we should uphold this ground of your appeal and deduct the period you spent in custody awaiting your trial from the head sentence. Our perusal of the transcript of the proceedings before the National Court, which includes the decision on your sentence, confirms that position.

10. In accordance with the provisions of s.3 (2) of the Criminal Justice (Sentences) Act 1986, it is a well accepted practice for sentencing judges to have pre-trial custody periods deducted from any sentence imposed on a prisoner. Usually, most sentencing judges exercise that discretion almost as a matter of course. In your case, for reasons only known to the trial judge, he failed to order deduction of the time you already spent in custody awaiting your trial.

11. A situation similar to your case arose in the case of Orosa Pogu v. The State.[4] There the Supreme Court on review of the appellant’s sentence found that the appellant had been in custody awaiting trial for 1 year and 8 months. However, the sentencing judge did not deduct that period from the head sentence. The Supreme Court found, as in your case, that the sentencing judge did not provide any reason for failing to deduct the pre-trial custody period and said:

"We can see no reason why such a deduction should not have been made. In a case where a judge exercises his discretion, now a statutory discretion, not to deduct the time in custody, reasons should be given, particularly where such a great length of time is involved. We are of the view that the time in custody should have been deducted."

12. Accordingly, the Supreme Court decided to have the relevant period of pre-trial custody deducted from the head sentence imposed in that case. We are inclined to arriving at a similar decision in your case by ordering a deduction from the head sentence the time you already spent in custody awaiting your trial. This is subject however, to what we decide in the following on the head sentence.

Issue

13. This leaves us to deal with your first two grounds of your appeal. These grounds can be considered under the broad question of whether the trial judge took into account your medical condition and the damage to your property in retaliation of the death you caused to the deceased before arriving at his decision on sentence? That issue necessarily raises the question of whether the sentence you received is manifestly low or high considering the factors in aggravation and in your mitigation?

Consideration of the Issues

(i) Medical condition and wilful damage to property

14. We deal first with the issue of whether the trial judge took into account your medical condition and the damages to your property before arriving at his decision on sentence? At page 34 of the appeal book, the trial judge noted the admission into evidence a medical report by a Dr. Pulai dated 19 June 2003. As the trial judge noted, the medical report confirmed you sustained a penetrating injury to your chest area, from which you recovered. Further, the trial judge correctly noted that, the medical evidence spoke of your eye problem too but pointed out that that problem was totally unrelated to the incident.

15. With regard to the wilful damage to your property, the trial judge briefly noted the admission into evidence a statement by a cousin brother of yours, Vitus Homoly. Apart from that brief mention, the trial judge said nothing further of it. That statement states that a number of destructive actions were taken in retaliation against you and your relatives by the deceased relatives. Those actions included you being stabbed, burning down of a number of houses and destruction and theft of some other properties. It also states that customary compensation of K2, 000 was paid.

16. You raised these two points in your mitigation in terms of demonstrating to the Court that, you have already suffered a form of punishment at the hands of the relatives of the deceased, even after you surrendered yourself to the police. We are not able to find any careful consideration of these points in the trial judge’s reasons for decision on sentence, apart from merely noting the admission into evidence of the relevant evidence. These were important points that went into the heart of our criminal justice system. One of the pillars of our criminal justice system is the principle that an offender should not be punished twice for the same offence and certainly it does not and should not encourage our people from taking the law into their own hands. The system is there to administer justice to all affected parties in a fair, transparent, considered and just manner, rather than presumptions of guilt, instant judgment and execution in a summary way such as those employed by the deceased relatives.

17. Pay back or retaliatory killing or action is something the laws of our land do not permit. Yet, there is far too many of these kinds of action, causing much destruction to a lot of both public and private properties and in some cases, the claiming of innocent lives. It is these kinds of action that are contributing to the decline in law and order. Hence, when such incidents come to the attention of the Court and all other relevant authorities, they should be condemned and those who are involved should be appropriately dealt with under the law. In Acting Public Prosecutor v. Uname Aumane & Others,[5] this Court in the context of a payback killing based on sorcery condemned such killing and said the offenders should be dealt with severely to punish and to deter such actions.

18. Similarly, the law already provides for a taking into account of any form of customary compensation. Where an offender pays such compensation, the law requires the Court to take that into account in the offender’s mitigation though, not as a total exoneration from receiving an appropriate penalty for his offence. This was first pointed out in The State v. Rex Lialu[6] by Amet J., (as he then was). The case went on appeal to the Supreme Court and the Supreme Court did not overturn the decision of the National Court.[7] Subsequent decisions of both the Supreme and the National Courts have endorsed that view.

19. You raised the retaliatory actions against you by the deceased relatives as well as the payment of compensation in your allocaturs. The State did not take any issue on the admission into evidence of the relevant evidence and the need for the Court to take those into account before arriving at a decision on sentence. These were relevant and important points you raised in your mitigation. It was thus, incumbent on the trail judge to take those factors into account before arriving at a decision on your sentence. For reasons only known to the trial judge, he did not give any meaningful consideration to those points. Hence, we have no hesitation in finding that, the trial judge did fall into a clearly identifiable error.

Was the sentence manifestly excessive or too lenient?

20. What then should be the consequence of the error on the sentence the trial judge decided to impose against you? It is trite law that, in an appeal against sentence, the appellant must demonstrate to the satisfaction of the Court that, the trial judge fell into an identifiable error that has the effect of vitiating the sentence. In other words, in an appeal against sentence, it is not sufficient to say that, the trial judge fell into an error. An appellant must go a step further by demonstrating that, the error is serious enough to question the appropriateness of the sentence appealed against, in terms of the sentence being either, too excessive or, too lenient,[8] taking into account, both the factors in aggravation and mitigation of an offender.

21. Thus, the question for us to consider here is, was the sentence of seven (7) years, part suspended, excessive or too lenient? That issue can be resolved by carefully considering the particular circumstances surrounding the commission of the offence as well as the factors both for, and against you, and the kind of sentences imposed in these kinds of cases. We turn first to a consideration of the sentencing trend and or tariffs in manslaughter cases.

The Offence and Sentencing Trend and Tariff

23. The offence that you committed is provided for with the penalty prescribed by s. 302 of the Criminal Code. Parliament considered the taking away of the life of another person, even in cases where an offender has no intention to either, cause bodily harm or, kill the deceased, very serious. It therefore, provide for life imprisonment as its maximum penalty. However, the Courts in the exercise of the powers vested in them under the Criminal Code have been imposing determinate terms of imprisonment.

24. These days, there are far too many killings more so, by many men of their wives, in ways that defies any sense, good reason and mercy toward those whose lives, they unlawfully and abruptly take. Given these prevalence of the offence, the Supreme Court has revisited some of its age old sentencing guidelines and have come up with new sentencing guideline with increased ranges of sentences for offenders. The decision in James Pangnan & Patrick Ponat v. The State[9] traces that development ending with the decision of the Supreme Court in Manu Kovi v. The State.[10]

25. However, as at the time of the trial judge’s decision in your case, the Manu Kovi decision had not yet come into existence. There were then only three categories of manslaughter cases identified, with their suggested range of sentences. The then latest decision of the Supreme Court was its decision in Sakarowa Koe v. The State.[11] There, the court reviewed the categorization of unlawful killing cases and varied the Supreme Court’s earlier decision in Anna Max Marangi v. The State[12] and said (from the head note):

"Given the prevalence of the offence and past sentences not appearing to deter other would be offenders as well as the fact that there can be no excuse except as provided for by law for the taking away of any other person’s life, the sentencing range for the three categories of manslaughter identified in Anna Max Marangi v. The State (08/11/02) SC702 was varied to cover all types of manslaughter cases and increased the tariffs in terms of, seven (7) to twelve (12) years for the first category, thirteen (13) to seventeen (17) years for the second category and eighteen (18) years to life imprisonment for the third category. The use of a firearm, which was not considered in the categorization of manslaughter cases, could fall at the worse end of the third category if not a separate category."

26. The first category is usually considered less serious of all manslaughter cases. Cases falling under this category are cases in which force is used accidentally or in an uncalculated manner, such as, a single blow, punches or kicks on any part of the deceased’s body. This also includes, cases in which, death is caused by an acceleration of a pre-existing disease or condition leading to death. The second category is an upgrade of the first, where it involves, repeated application of vicious force, with or without the use of an instrument or weapon or repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. Deaths caused by a single or multiple knife stab wounds applied to the head, neck, chest or abdomen or on any other vulnerable part of the body, even if, there is no other special aggravating factors, come under this category. The third category is cases that are more serious than those falling under either, the first or, the second categories.

Sentence in Your Case

27. In your case, there are a number of factors in aggravation as well as a number of factors in your mitigation. Considering first, the factors in your favour or mitigation, we note first up that, you pleaded guilty to the charge. That saved the State the trouble and costs of running the trial. Secondly, you did not us a knife or object to attack the deceased. Thirdly, you surrendered to the police. Fourthly, you and your relatives paid some compensation. Finally, you were attacked by the deceased brother, whilst you were in the hands of the police and you lost yours and other members of your family’s houses and other property. Finally, we note that, you had no prior conviction that is, a conviction prior to the commission of the offence against your now deceased wife.

28. We have already said that, customary compensation operates only as a factor in your mitigation. However, in order for that to happen, there must be evidence of you personally contributing to or, making the compensation. You produced no evidence of how much of the compensation, you personally paid. Given that, there can be no allowance in your favour on the basis of the payment of compensation. Your relatives could have paid the compensation to prevent further destruction to their properties for your killing of the deceased. Accordingly, we find that, even though the trial Judge did not take into account your claim of, having paid customary compensation that was of no consequence because of your failure to show that, you personally paid the whole and or a substantial part of the compensation.

29. In relation to the personal injuries occasioned to you and the destruction of your house, your relatives houses, damage and even theft of your other properties, we reiterate that, that was a form of punishment to you. So the trial Judge was under an obligation to take this factor into account so as to ensure that, you were left with no feeling of being punished twice for the same offence. If the retaliatory actions were directed only at you and your property, this could operate in your favour. However, we note that, your actions caused the unnecessary loss and sufferings of your relatives. They lost their houses and other properties because of your actions. This cancels out any gains you might make in your mitigation on account of suffering the retaliatory actions against you.

30. We note that, the trial judge considered only part of your claim that, you suffered at the hands of the deceased relatives. Then he correctly concluded that, you were complaining about an injury that was minor as against the fact that, you killed the deceased thereby, bringing about her life to an abrupt end prematurely. We do not consider it appropriate that, you should be totally excused from your full criminal responsibilities under the law on account of the retaliatory actions against you and your relatives but, should only mitigate part of the sentence you should receive.

31. Against the factors in your favour, we note that, you applied much and possibly repeated force against the deceased evidenced by the bruising in more than one location and a rupture of the deceased spleen. It seems you and the deceased were the only persons in the house at the relevant time, fighting. When she died, her story died with her. It was incumbent on you to fairly tell the story as it was but, you did not do that, neither in the record of interview with the police, nor, at the trial. This shows preparedness on your part to withhold relevant information, especially as to the number of punches you landed on the decease, where you landed them and whether she fell dead as you were beating her or, she developed complications from the injuries you inflicted upon her and she eventually died. Further, you got drunk, which seem to be your custom or habit and then become violent.

32. After weighing the factors for and against you, the trial Judge decided to impose a sentence of 7 years and then suspended 1 year of that. The facts of your case placed your case in the higher end of the first and at the start of the second category of manslaughter cases as per Anna Max Marangi v. The State[13] and as varied by Sakarowa Koe v. The State.[14] That warranted a sentence of between 12 and 13 years. Hence, the sentence the trial Judge decided to impose against you was 5 to 6 years below the guidelines, which we find was too low.

33. The trial Judge did not provide any reason for failing to follow the guidelines set by the Supreme Court, which we have just noted. As this Court recently said in the case of James Pangnan & Patrick Ponat v. The State SCRA 39 & 54 OF 2004, the National Court is bound to follow the decisions of the Supreme Court. The National Court is also bound to follow the guidelines for sentencing, unless, there are good reasons that are sound in law to justify a departure. The sentence in your case could only be justified on account of the retaliatory actions against you and the possibility that, you may have contributed to part of the compensation paid to the deceased side and your guilty plea and being a first time offender. The trial Judge did not advance these as the basis for coming down that low from the guidelines set by the Supreme Court. Indeed, we note that, the trial judge did not have any regard to the decision of this Court in Sakarowa Koe v. The State.[15] He therefore allowed himself to fall into error.

34. Bearing in mind the foregoing, the State argues for this Court to exercise its powers under s. 23 (4) of the Supreme Court Act, by increasing the sentence to a term which this Court considers appropriate. This Court in James Pangnan and Patrick Ponat v. The State,[16]fully reviewed the cases on point with regard to the Court’s power to increase sentences on appeal. This started with the judgment of the Supreme Court in Lawrence Hindemba v. The State,[17] and ended with the decision in Sakarowa Koe v. The State.[18] There is no need to repeat the discussion here, save only to summarize the principles that emerge from the discussions in that judgment.

35. The first point that emerges is that, the National Court is bound by the decisions of the Supreme Court by virtue of Schedule 2.9 (1) of the Constitution. Where the Supreme Court provides some guidelines as to how a power vested in the National Court can be exercised, they have similar force, unless there is good reason that are sound in law exists and warrants a departure. Secondly, where the National Court clearly falls into an identifiable error, say for example, by imposing a sentence that is manifestly low or, the National Court makes a decision in relation to sentence without any legal authority, this Court can exercise its powers under s. 23 (4) of the Supreme Court Act. Thirdly, going by the authority of the decision in the Lawrence Hindemba v. The State,[19] this Court can exercise that power with or without any cross appeal by the State or the Public Prosecutor. Finally, the Court has given sufficient warning of its intention to exercise that power in appropriate cases. Thus, it is time now to give effect to that warning in cases that warrant an exercise of the Court’s powers in question.

36. For the reasons we have already advanced above, we accept the State’s submission that, this is an appropriate case in which the Court can exercise its powers under s. 23 (4) of its Act. Accordingly, we quash the sentence of 7 years imposed by the National Court and substitute it with a sentence of 14 years.

Part suspension

37. We now need to deal with the issue of suspension of a part of the head sentence, since the learned trial judge decided to suspend one year out of the 7 years, he decided to impose against you. In respect of that sentence, we note there is an obvious error on the face of the decision of the National Court. The problem concerns the learned trial judge’s decision to suspend 1 year out of the 7 years sentence he decided to impose against you, from two perspectives. First, the learned trial judge said his decision to suspend was in consideration of your guilty plea and the consequence that entailed. This was the same reason he used to suspend substantially the sentence he decided to impose against you for your earlier but unrelated offence of stealing, which is recorded at page 36 of the appeal book. That was clearly erroneous because, your guilty plea should and was correctly reflected in the sentence of 7 years.

38. Suspensions of sentences are usually arrived at in consideration for future commitments required of a prisoner aimed at assisting him to rehabilitate and not to re-offend based on a pre-sentence report. That appears clearly from s. 19 (6) (b) of the Criminal Code. As this Court already said in Acting Public Prosecutor v. John Airi:[20]

"The power to suspend part of a sentence derives from the proviso to s.19 (f) of the Criminal Code. Portion of the sentence may be suspended upon the offender entering into a recognisance. The terms of the recognisance may be acceptable to the offender or they may not. If the offender declines to enter into a recognisance, he is obliged to serve the whole of the term of the sentence.

39. Secondly, the decision to suspend went against trite law. The law is that, there can be no suspension of the whole or part of a sentence, unless, there is a pre-sentence report supporting the suspension. The power to suspend either the whole or part of any sentence is conferred by section 19(6) (b) of the Criminal Code. That power can only be exercised on some proper basis.[21] In Acting Public Prosecutor v. Don Hale,[22] the Supreme Court elaborated on that, in this way:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

40. Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima & Siune Arnold v. The State.[23]

41. In your case, there is no record of the learned trial judge calling for, receiving, considering and acting in accordance with a pre-sentence report supporting the decision. Clearly, the learned trial judge erred in deciding to suspend part of your sentence in the way he did. We would therefore, quash and set aside this part of the learned trial judge’s decision and orders. That should leave you with the whole of the now increased sentence of 14 years less the time you already spent whilst awaiting your trial and now this decision.

42. We can not find any record of the learned trial judge trying to ascertain the period you have spent in custody awaiting your trial. It is clear however that, you were charged and eventually convicted in 2004 for the offence of stealing in 1999. It is not clear when you were arrested, charged and remanded in custody for that offence. You claim in your notice of appeal that, you spent about 1 year and 5 months. It is not clear whether, this was your pre-trial custody period for the offence of unlawfully killing your wife or, for the stealing offence and or the time you have already spent as a prisoner under the sentence for stealing. As the records are not clear, we are unable to work this out. Accordingly, we require you and the State to assist us with ascertaining the relevant period.

43. Once the pre-trial period is thus ascertained, we will deduct from the now increased sentence of 14 years, that part of the time you may have spent strictly while waiting for your trial and eventual sentence in relation to the unlawful killing of your then wife, now deceased. Then, we would order that the balance of your sentence be served cumulatively with the sentence that may be remaining for the earlier sentence for stealing. In other words, your sentence for unlawfully killing your now deceased wife shall commence as soon as your sentence for stealing ends. That is necessary because the two offences are totally different from each other in terms of different victims, different times and places and locations. Further, the offences are totally different in character and do not arise out of the same transaction.

44. For the foregoing reasons, the Court makes the follows order:

1. The Appeal against sentence is dismissed.
2. The sentence of 7 years with 1 year suspended by the National Court is quashed and is substituted by a sentence of 14 years.
3. The Appellant and the Respondent shall assist the Court to ascertain and deduct from the 14 years sentence the period if any, the Appellant may have strictly spent in custody awaiting his trial and sentence in relation to the manslaughter charge.
4. The Court shall specify the period to be deducted if any, under order 3 above and specify the balance of the sentence, which the Appellant shall serve in hard labour.
5. The Appellant’s effective sentence for manslaughter the subject of this appeal shall commence immediately following the end of the sentence for stealing, the Appellant is already serving.

_____________________________

Appellant in Person
Public Prosecutor: Lawyer for the Respondent.

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^[1] The State v. Polin Pochalon Lopai [1988-89] PNGLR 48.
^[2] (01/04/04) SC739.
^[3] Chapter 37.
^[4] [1986] PNGLR 203.
^[5] [1980] PNGLR 510.
^[6] [1988-89] PNGLR 449, at pp 452 – 453.
^[7] See Rex Lialu v. The State [1990] PNGLR 487
^[8] Norris v. The State [1979] PNGLR 605.
^[9] SCRA 39 & 54 OF 2004, delivered on 30^th August 2006 at Kokopo.
^[10] (31/05/05) SC789, per Injia DCJ., Lenalia, Lay JJ.
^[11] (01/04/04) SC739, per Sevua, Kandakasi and Lenalia JJ.
^[12] (08/11/02) SC702, per

^[13] Opt cit. n. 12.
^[14] Opt. cit. n. 11.
^[15] Opt. cit. n. 11.
^[16] SCRA SCRA 39 & 54 OF 2004, delivered on 30^th August 2006, per Sevua, Kandakasi, and Manuhu JJ.
^[17] (27/10/98) SC593, per Woods, Injia, and Sawong JJ .
^[18] (01/04/04) SC739, per Sevua, Kandakasi and Lenalia JJ.
^[19] Opt cit. n. 29.
^[20] (24/11/81) SC214, per Andrew, Miles and Bredmeyer JJ.
^[21] Public Prosecutor v. Thomas Vola [1981] PNGLR 412.
^[22] (27/08/98) SC564.
^[23](03/10/03) SC730, per Kirriwom, Kandakasi, and Batari JJ.