SC697

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCRA No. 1 of 2002

BETWEEN:

JERRY WASU
Appellant

AND:

THE STATE
Respondent

Waigani: Kapi DCJ, Sheehan J, Davani J.
2002: 3rd October, 20th December

CRIMINAL LAW – Appeal against sentence – Manslaughter - Guilty Plea – First offender – Provocation in the non legal sense.

Counsel:
Appellant in person
K. Umpake for the Respondent

20th December 2002

BY THE COURT: 	This is an appeal by the appellant against sentence for manslaughter where the Court on the 16 November 2001 convicted the appellant and sentenced him to 12 years IHL. This sentence was reduced by 1½ years for time spent in custody awaiting trial. The appellant is presently serving a period of ten years and six months.

At the date of trial, the appellant was aged 28 years. He is from Kandu Wanum in the Angoram District of the East Sepik Province and is married with two children aged 4 and 6.

The appellant pleaded guilty to one count of manslaughter. The evidence is that on the 28th October 1999 in the town of Popondetta, the appellant was confronted by the deceased who was drunk and disorderly. This led to a confrontation between the deceased and the appellant whereupon a Reserve Constable Willie Kageni intervened and separated them. On seeing this, a friend of the appellant then tried to stab the Reserved Constable but was disarmed and chased. The deceased then followed the Constable followed by the appellant. At the Independence Oval, the appellant saw the deceased chasing his friend. The appellant then using a stick he had in his hand, struck the deceased on his head rendering him unconscious. The deceased died on the way to the hospital.

It is settled law that a sentence imposed by a trial judge should not be disturbed unless it is shown to be manifestly excessive. A sentence can be manifestly excessive where a trial judge has acted on the wrong principle, biased, overlooked, under valued, overestimated or misunderstood some salient features of the evidence (see Wanosa and Others v. The Queen PNGLR 90). These principles have been followed by numerous cases in this jurisdiction. The onus is on the appellant to show an identifiable error in principle or on the facts or the error may be inferred from the whole of the circumstances (see Norris v. The State [1979] PNGLR 605 at 613).

The offence of manslaughter carries a maximum penalty of imprisonment for life, subject to of course s 19 of the Criminal Code. Counsel for the State in relying on the principles set out in Rex Lialu v. The State [1990] PNGLR 487 and which was referred to also by the trial judge, submits that a life has been taken away prematurely and no compensation or expression of remorse will restore the deceased person to life. The appellant in person on the hand simply submits that his sentence is manifestly excessive and therefore this Court should reduce it.

We cannot find any identifiable error in the reasons for sentence. The trial judge had regard to all the relevant matters in sentence including the fact that the appellant was a first offender and the circumstances of the fight which led to the death of the deceased. We do not consider the fact that the deceased was drunk and had an argument with the appellant in the first place has any significance in the subsequent fight at the Independence Oval. When the fight got to the oval, the deceased was chasing a friend of the appellant. The deceased was not chasing the appellant. The appellant came in to attack the deceased while the deceased was chasing his friend. In the circumstances we cannot give this consideration any further mitigating effect than the trial judge had given in his sentence. We find that there is no error in this regard.

Furthermore, the trial judge had regard to the principles and the proper approach to sentencing in manslaughter cases enunciated by the Supreme Court in Lialu v. The State (supra).

The result of this appeal is to be determined on second principle as stated by Kearney DCJ in Norris v. The State (supra) at 612 - 613:

"There will also be vitiating error if upon the proved facts and making fullest allowances for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identifiable, this Court will infer that some error must have occurred in the exercise of the sentencing discretion."

This requires an examination of range of sentence in manslaughter cases in recent times. In considering this issue, we need to bear in mind that sentencing is not an exact science and we cannot approach this with a mathematical formula for determining the actual length of a sentence. (Acting Public Prosecutor v. Nitak Mangilonde Taganis [1982] PNGLR 299 at 303).

We have examined the range of sentences given in manslaughter cases in 2001 and 2002. In 2001 the following cases indicates the range of sentences imposed for manslaughter cases where the accused person pleaded guilty. In State v. Wendy Leo (CR 144/01) the deceased was stabbed with a kitchen knife and the National Court imposed a sentence of ten years IHL. In State v. Eleke Aipanda (CR 405/01) the deceased was stabbed on the neck and upon plea of guilty National Court imposed a sentence of 11 years. In The State v. Laimia Leo (CR 657/01) the deceased was stabbed by a knife and upon a plea of guilty to manslaughter the National Court imposed a sentence of 14 years IHL. In 2002 we take note of following sentences imposed in manslaughter cases. In State v. Lawaeye Saegihar (CR 269/02), the deceased was hit by a long stick as in present case and upon plea of guilty to manslaughter the National Court imposed a sentence of 16 years IHL. In State v. Hobert Erick (CR 1756/02) the deceased was stabbed with a knife on the leg and died of a loss of blood. Upon a plea of guilty to manslaughter, the National Court imposed a sentence f 11 years IHL. In The State v. Brian Kasira (CR 105/02) the deceased was killed as a result of kicking to the abdomen which ruptured the spleen and upon plea of guilty to manslaughter the prisoner was sentenced to 10 years IHL. In The State v. Karken Kinden (CR 145/02) the deceased was shot by a gun and upon plea of manslaughter the National Court imposed a sentence of 20 years IHL. In The State v. Samuel Penimu (CR 273/02) the deceased was stabbed with a grass knife and upon plea to the offence of manslaughter the National Court imposed a sentence of 12 years IHL.

Having regard to the range of sentences on manslaughter cases, we do not consider that the sentence of 12 years in all of the circumstances is manifestly excessive. We conclude that the sentence falls within the range of sentences imposed for manslaughter cases. We would dismiss the appeal against sentence and confirm the sentence of 12 years imposed by the National Court.
___________________________________________________________________
Appellant in person
Lawyer for the State: Public Prosecutor