SC739

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 47 OF 2003

SAKAROWA KOE

-V-

THE STATE

MT. HAGEN: SEVUA, KANDAKASI, LENALIA, JJ.
2004: 29th March
1st April

APPEAL – PRACTICE & PROCEDURE - Appeal against sentence – Supreme Court cannot interfere unless a clear case of error is demonstrated – Lenient sentence – No error vitiating the trial judge’s exercise of discretion – Case warranted cross-appeal against sentence but not done – Consistent pattern with no apparent good reason – Public Prosecutor under Constitutional duty to present indictments and ask for sentences befitting a crime – Failure by Public Prosecutor to cross-appeal or to ask for higher penalty is no bar to Supreme Court exercising its powers under s.23(4) of the Supreme Court Act Chp.37 

CRIMINAL LAW – Appeal against sentence – Manslaughter – Shooting unarmed man purportedly in aid of a brother – Death due to loss of blood from shotgun wound – Guilty plea – First time offender – No prove of customary compensation paid – Sentence of life imprisonment warranted – Sentence imposed too lenient – No Cross-appeal against sentence – Sentence of 20 years imposed by National Court 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. The appellant had an argument with the deceased relatives, which developed into a fight. In the course of the fight, the appellant ran to his house, which was nearby, returned with his homemade shotgun, and shot the deceased after several earlier unsuccessful attempts. The deceased died sometime later from the shotgun wound. In his grounds of appeal the appellant argued that the trial judge did not take into account factors in his mitigation, which included customary compensation payment and that the sentence was excessive.

Held:

1.	The learned trial judge did take into account factors properly established in the mitigation of the appellant. The claim of compensation payment, was not established by any evidence and therefore the learned trial judge was correct in not taking that into account.

2.	Given the prevalence of the offence and past sentences not appearing to deter other would be offenders as well as the fact 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.

3.	The sentence of 20 years was a lenient sentence considering that the case was in fact a wilful murder committed in the course of committing the offences of unlawful manufacturing and having in possession a unlicensed firearm, warranting the death penalty on conviction but reduced to manslaughter for reasons only known to Public Prosecutor. 

4.	The Court was surprised that the Public Prosecutor presented an indictment that did not reflect the facts of the case and thereafter failed to cross-appeal against sentence or ask for an increase in the sentence. In future, the Supreme Court will exercise its powers under s. 23 (4) of the Supreme Court Act (Chp.37), whether or not there is a cross-appeal or there is a submission for an increase in the sentence as unmeritorious prisoner appeals are wasting the Courts time and are draining public funds unnecessarily.

5.	In the circumstances, the learned trial judge did not fall into any identifiable error that vitiated the exercise of the learned trial judge’s sentencing discretion and therefore warranting interference by the Supreme Court of the exercise of that discretion in the terms asked for by the appellant. Accordingly, the appeal was dismissed with sentence imposed by the National Court confirmed. 

Cases cited:
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.
The State v. Henry Idab (17/12/01) N2172.
The State v. Tony Pandau Hahuahori (No 2) (21/02/02) N2186.
The State v. Edward Toude & Ors.(16/10/01) N2298.
The State v. Kennedy Arus (16/03/01) N2081.
Justin Wayne Tkatchenko v. Dessy Magaru (04/05/00) N1956.
The State v. Attiock Ishmel (16/10/01) N2294.
The State v. Peter Yawoma (unreported judgment 19/01/01) N2032.
Rex Lialu v. The State [1988-89] PNGLR 487.
Anna Max Marangi v. The State (08/11/02) SC702.
Antap Yala v. The State (Unreported Supreme Court Judgment of Amet CJ, Salika J and Injia J dated 31 May 1996).
Jack Tanga v. The State (1999) SC602.
John Kapil Tapi v. The State (2000) SC635.
Jimmy Ono v. The State (04/10/02) SC698.

Counsel:
Appellant in Person.
Mr. J. Kesan for the Respondent.

1st of April, 2004

BY THE COURT: 	Sakarowa Koe, you are appealing against a sentence of 20 years less the time you had already spent in custody awaiting your trial for manslaughter, which the National Court imposed on 22nd May 2003. 

You lodged your appeal on the 07th July 2003. That was after the expiry of appeal period under s.17 of the Supreme Court Act. However, we note that the respondent is not taking any issue with that. In any case, we note that the Supreme Court has been allowing prisoner appeals out of time, by way of a review. We therefore, proceed to deal with your appeal or application on its merits.

In you notice of appeal, you set out your grounds of appeal in these terms:

"1.	The Judge did not take into account the assistance of mitigating factors.
2.	The sentence in the circumstances very excessive.
3.	Such other grounds as may be available upon being issued with appeal books.
4.	Compensation was paid."

In our view, these grounds reveal that you are appealing against the sentence based on severity of sentence because of a failure to take into account factors in your mitigation, which includes a payment of compensation. Therefore, before proceeding any further, we remind ourselves of the settled law that, the Supreme Court cannot readily disturb a sentence imposed by a trial judge unless an appellant demonstrates the sentence imposed is 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. 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 of the National Court.

With this in mind, we turn to your grounds of appeal. In our view, grounds 1 and 4 are not separate because if there was evidence of payment of compensation, that may have been a factor in your mitigation. Therefore, we will consider the fourth ground in the context of the first ground. The second ground requires an examination of all of the circumstances surrounding the commission of the offence, which includes the factors for and against you. We will do that after considering the first ground. The remaining ground is not a ground of appeal. In any case, you did not raise anything under this ground in your submissions. We therefore, find this ground of appeal is without merit and hence, dismiss it.

The relevant facts put to you and you pleaded guilty to are these. On 27th September 2002, you were in your village market at Siguwa, in Lumusa District Western Highlands Province. It was a market day and many people from your village were there. Some of the people were selling their produce while others were buying. You and another person went around charging and collecting fees from those who were selling.

During the process of charging and receiving fees, you and your friend came across a woman who was selling cooked food. You asked her to pay her fees and the woman refused to do that. You then entered into an argument with her, which in turn led to a fight between the woman’s and your side. In the course of the fight, you went to your house, which was nearby and returned with a homemade shotgun. You then confronted a Wambi Pundu (now deceased) with the shotgun and shot him on his chest, which led to his death.

In your submissions before this Court, you claim that it was an accident because the cartridge fired accidentally as you struggled with two others who had attacked your brother. You go on to say that, two people who chopped your brother are outside free while you are in prison. You did not tell this to the National Court when it put the charge to you and later when asked to address the court on the kind of punishment you should receive.

On these facts, the learned trial judge found that the killing was for a petty reason and not warranted. It also found that you killed the deceased notwithstanding attempts to stop you by other persons at the scene. You were determined to kill the deceased and you did. The Court also found that you had no license or authority to carry the homemade gun. You do not complain against these findings. Your only complaint is that, the learned trial judge did not consider the mitigating factors and that the sentence was excessive in the circumstances. We turn now to consider these claims.

In relation to the claim that the learned trial judge did not consider the mitigating factors, we note the mitigating factors put to the learned trial judge were these:

1.	You pleaded guilty to the charge of manslaughter; and
2.	You were a first time offender.

You did not personally raise the issue of customary compensation and the details of it. There was however, a mention of that by your lawyer, without specifying, the date of its payment, by whom and to whom, whether this was in pigs, money other items of value or a combination of all or any of these. A recent statement of the law regarding compensation payments is by the National Court in The State v. Henry Idab, in these terms:

The law is clear; compensation is a relevant factor only in mitigation and not in substitution of criminal penalties: see The State v. Rex Lialu [1988-89] PNGLR 499 and The State v. Abel Airi (28/11/00) N2007, at page14 in The State v. Nickson Pari (N0.2) (10/01/01) N2033, in the context of considering both already paid and future compensation. … [I]f the offender is making the payment in either case, only then should such payments be taken into account."

In our view, this can only happen where there is evidence of any compensation paid. That should include all the necessary details such as the persons making the payment, the form and value of the items paid over, when, where and to whom. In your case, you did not in any way in your own words, tell the National Court about any compensation, whether already paid or yet to be paid. Only your counsel mentioned it in passing or casually. There was therefore, nothing properly before the learned trial judge to consider and take into account in your favour. Accordingly, the learned trial judge did not err in not taking your claim of having paid compensation into account.

As for the other factors, we note that, you through counsel informed the Court of only two factors in your favour. These were your guilty plea and being a first time offender. The learned trial judge considered these factors in these terms:

"I take into account the prisoner’s plea of guilty and that he had expressed sorrow for his actions.

I also take into account that he is a first time offender. Those factors are pitted against the fact that the prisoner took away somebody’s life for a petty reason. There was no sense in what he did. As I said earlier he might have been led to take those actions for a mere 20t, 50t or K1.00."

Clearly therefore, there is no merit in relation to your first and fourth appeal grounds. We therefore, dismiss these grounds.

This now leads us to the remaining ground, that the sentence of 20 years is excessive in the circumstances. The question that necessarily arises is what were the circumstances? The circumstances as found by the learned trial judge were as follows:

"The prisoner and another person were collecting market fees when a woman vendor either refused to pay or did not have any money to pay her market fees. An argument ensued which led to a fight between the woman’s line and the prisoner’s line.

In the heat of the fight the prisoner went to his house got a home-made gun and in spite of others attempts or efforts to stop him fired the gun killing Wambu Pundu. Killing and taking someone’s life in this manner is a serious matter. The killing was unnecessary and uncalled for. The actions of the prisoner were childish and made no sense. Someone gets killed because a lady refused or did not have money to pay her market fee. What is the market fee? 20t, 50t or K1? Someone got killed because 20t or 50t or K1 was not paid as market fee. This is nonsense.

The prisoner had a home-made gun in his possession. He ought to have been charged for that offence as well. People just cannot be allowed to carry home-made guns or unlicensed firearms whenever it pleases or suits them. Homemade firearms are often used for armed robberies and other crimes. This killing is just one example of how homemade gun was wrongly used. It was used to kill a man and it may have injured others as well.

Unlawful killing is a serious crime. It involves the taking the life of another person. Human life is sacred. When people use guns on other people it seems to give the impression that the one who uses the gun has no regard for other people’s lives. And that was what happened here in this case. As I said earlier, this killing was just nonsense. It made no sense to kill somebody in the circumstances given.

There is so much rock and big headedness in our villages nowadays that even the elders and leaders in the village have no control over such man as the prisoner. The prisoner is a person who can be carried away by emotions very easily. Even after he was stopped by other people that did not do anything to stop him. He insisted on doing what he did and did it."

There is no challenge to these findings and or observations of the learned trial judge. In addition, we note that the medical report speaks of several pellet marks on the left chest area and that pellets through the lungs ruptured the pleura and lung tissues. Based on these findings, the medical report concluded that the deceased died from haemopneumothorax from the gun wound.

In our view, this was not a case of an accidental discharge of a fully loaded gun. Instead, the evidence shows that, you purposely went into your house to get the gun and a cartridge to use. It seems you loaded the shotgun with the cartridge and then tried to shot the deceased several times, despite a number of people trying to stop you. You eventually succeed by getting your target at close range resulting in his death. There is no evidence of the deceased or any body else armed with a gun or any other weapon ready and or trying to attack you.

Further, as the learned trial judge found, you had no license to have in your possession the homemade shotgun. As far as we know, there is no license for any one in the country to make shotguns or such other weapons. Yet there are large numbers of homemade guns and other dangerous weapons in the country and their readily use to commit serious crimes, such wilful murder, murder, robbery and rape. As such, we are of the view that, offenders who use homemade guns to commit offences deserve stiffer penalties to discourage the manufacture of and use of such weapons. In this regard, we endorse the National Court already taking this into account as a factor in aggravation as demonstrated by the judgments in the case of The State v. Tony Pandau Hahuahori (No 2), The State v. Edward Toude & Ors., and The State v. Kennedy Arus.

Now returning to your case, we find that, this was a serious case of wilful murder using a homemade gun. What we are not able to understand is what caused the Public Prosecutor to present an indictment for manslaughter against you when the facts disclosed a case of wilful murder and failing that murder. We can only assume that, this came about because of a plea bargain. Whilst we appreciate that, the Public Prosecutor has an absolute discretion to decide on the particular charge or indictment to present against an accused, the exercise of that discretion must be on proper principles and or considerations. The Public Prosecutor would be failing in his duty to the people, if he decides to present an indictment on a less serious charge when the facts clearly reveal a more serious case, for example, reducing a clear case of rape to unlawful carnal knowledge or as in this case, a clear case of wilful murder to manslaughter.

In any case, where an indictment charging an accused with a less serious offence is present even though the facts support a more serious charge, we agree with Kandakasi J in The State v. Attiock Ishmel, that:

"No doubt by reason of a plea-bargaining resulting in the dropping of a more serious offence to a less serious one drastically reduces the kind of penalty an offender should receive. Given that, …there exists no reason or basis for a further reduction of any sentence. The society quite rightly expects the courts to impose on their behalf a sentence that best reflects its disapproval of the kind of conduct the offender has engaged him or herself in. That expectation should always be borne in mind by a sentencing authority when considering an appropriate sentence to impose in any case. It would be a disservice to the society’s legitimate expectation if sentences prescribed under a lesser offence were further reduced."

We add however, that in some cases, there may be very good mitigating factors. In such cases, the Court should be free, to further reduce the sentence only as an exception rather than the norm.

Applying this to the present case, we note that the facts to which you pleaded guilty supported a charge of wilful murder but manslaughter was the actual charge against you. This was even lower than murder. This effectively reduced automatically the likely sentence of death to life imprisonment. The question is, were there any good mitigating factors that warranted a further reduction of the prescribed sentence of life imprisonment?

The only factors operating in your favour were your guilty plea and being a first time offender. In our view, the first factor was the reason for the reduction from a possible death penalty to life imprisonment. Then given that, you are a first time offender, it would be appropriate to have the prescribed maximum reduced to a determinate term of years but closer to life imprisonment given the seriousness of the offence.

At his stage, it is appropriate to refer to sentences and guidelines in other cases to determine whether the sentence of 20 years was appropriate or excessive, in the particular circumstances of the case. This Court in Rex Lialu v. The State, set the following guidelines for sentencing in manslaughter cases at page 497 of its judgment:

(a)	The Court must have careful regard to the circumstances of death and the way in which death was actually caused.
(b)	The following matters may be relevant to the nature of the act causing death:

(i)	the nature and frequency of any attack or assault;
(ii)	whether the injury which caused the death arose directly from an attack or assault or was caused by, for example, falling on an object;
(iii)	whether the injury was caused by the person or by a weapon;
(iv)	whether there was deliberate intention to harm;
(v)	whether there was provocation in the non-legal sense;
(vi)	whether the deceased had a thin skull, and
(vii)	whether the deceased had an enlarged spleen.

However, this Court, in its recent judgment in Anna Max Marangi v. The State, states and acknowledges that the kind of sentences that have been imposed especially in domestic settings, having regard to the above guidelines are now out dated. In that case, the Supreme Court referred to three of its earlier judgments namely Antap Yala v. The State (Unreported Supreme Court Judgment of Amet CJ, Salika J and Injia J dated 31 May 1996); Jack Tanga v. The State; and John Kapil Tapi v. The State. The prisoners in those cases received lenient sentences. The Court sounded a warning in the first of these cases that, unintentional killing is becoming prevalent and that, sentences will increase. The Court also reiterated that, whilst murder sentences would be higher than manslaughter sentences, there are killings that would be serious and would attract the maximum penalty of life imprisonment.

Based on these and other cases, the Supreme Court in the Anna Max Marangi came up with three categories of manslaughter cases particular in domestic settings as follows:

"The first category relates to cases which come in the lower end of this range. These cases involve application of force in an uncalculated manner, such as a single blow, punch or kick on any part of deceased’s body. For instance a single or multiple kick or punch causing rupture of the spleen. These kinds of killings attract sentences between three (3) years and seven (7) years. Cases where the deceased has pre-existing disease which accelerated or contributed to the death such as enlarged spleen are treated as less serious than the death of a normal person and they attract sentences in the lower end of this scale: see Public Prosecutor v. John Mela SCRA 17/01 unpublished Supreme Court Judgment dated 28 June 2001.

The second category relates to cases which fall in the middle part of this range. These cases involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. An example is Jack Tanga’s case. Death caused by a single or multiple knife stab wounds applied on the head, neck, chest or abdomen or on any other vulnerable part of the body, without any other special aggravating factors, also come under this category. Unintentional killings which come under this category attract sentences between 8 and 12 years.

The third category relates to cases which fall on the top end of the range. Those cases involve application of direct force in a calculated manner, on the body using a weapon such as a knife, bushknife or axe thereby inflicting serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Death caused by chopping the neck, legs and arms with an axe or bushknife are examples of this kind of killing. Death caused by single or multiple (knife) stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. This kind of killing attracts sentences between 13 and 16 years. An example of this type of killing occurred in John Kapil Tapi. The case of Antap Yala could also come under this category although the sentence imposed in that case was 10 years.

As to which of these 3 categories a particular case falls into, depends principally on the viciousness of the assault, the manner in which the injuries were inflicted and the seriousness of those injuries which caused death.

It is worth noting that killings which come under the second and third categories may well constitute murder or event wilful murder if the necessary intentions to either cause grievous bodily harm or kill are present."

We observe a number of things about this judgment. Firstly, we note that the above categorization and or guidelines are in the context of a domestic setting. In our view, there is no reason why these should not apply with appropriate modifications to all other settings. Accordingly, we are of the view that they do apply with appropriate modifications to all other settings. We add at the same time that, where a killing clearly constitutes wilful murder or murder and not manslaughter, what we have just stated above apply.

Secondly, there is no mention of the use of a firearm. In our view, where such a weapon is used, it becomes a very serious matter. This is so, given the kind of damage or destruction it can bring. Therefore, this could warrant a category on its own or if not, at the worse end on the third category.

Thirdly, the judgment did not recommend any particular range of sentence. Instead, it merely presented in summary form the kind of sentences imposed in the categories outlined. What is clear to us though is that, the Court acknowledged that the offence of manslaughter is prevalent and that the past sentences have not served any deterrence. Hence, we are of the view that sentences should increase in a bid to serve that purpose. Proceeding on that basis, we suggest that the sentencing tariffs be in terms of seven (7) to twelve (12) years in the first category, thirteen (13) to seventeen (17) years in the second and eighteen (18) years to life imprisonment in the third categories. Of course, the National Court should be at liberty to progressively, increase the tariffs if there is still no decline in the number of unlawful killings. At the same time, the National Court still has the discretion to impose a sentence less than what we have recommended in exceptional circumstances where very good mitigating factors exist but certainly not as a matter of course.

In view of all of these, we are of the view that, the sentence you received is not excessive. Instead, we are of the view that, the sentence was rather too lenient in the particular circumstances of your case. If the Public Prosecutor cross-appealed or asked for an increase in the sentence we could have easily increased the sentence to some where between 40 to life imprisonment. In saying that, we note that this Court has power under s. 23(4) of the Supreme Court Act to increase the sentence in appropriate cases.

We note that, in many instances, the Public Prosecutor, for reasons only known to him, has not filed any cross-appeals or lodge appeals in clear cases of very low sentences in very serious cases of rape, wilful murder, murder, manslaughter and armed robbery notwithstanding the repeated calls by the community for tougher penalties. This Court has raised this issue formerly in its judgments as in Jimmy Ono v. The State and notes with concern that, the Public Prosecutor appears to have done nothing about it, evidenced by the lack of any appeals and or cross-appeals in clear cases such as this. In these circumstances, we now warn that, the Supreme Court will proceed to exercise, in appropriate cases its powers under s. 23 (4) of the Supreme Court Act, whether or not the Public Prosecutor cross-appeals against prisoner appeals and whether or not that office requests an increase in the sentence. There is a continuous waist of limited public funds and the Court’s time because of the Supreme Court allowing unmeritorious cases to continuously proceed to a hearing with no penalty whatsoever against such appellants. It is about time now that, that kind of leniency should come to a stop to put an end to the unnecessary wastage of the limited public funds and the Court’s limited time. We are of the view that, if the Supreme Court proceeds to exercise in appropriate cases, its powers under s. 23(4) of its Act, it will enable only meritorious appeals to come through and not just about every prisoner’s baseless appeals just for the sake of appealing.
___________________________________________________________
Lawyers for the Appellant:			In Person
Lawyers for the Respondent:			The Public Prosecutor