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Millay, Regina v [1971-72] PNGLR 121 (7 May 1971)

[1971-72] PNGLR 121

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

REGINA

V

MILLAY

Port Moresby
Minogue CJ Clarkson Kelly JJ

6-7 May 1971

CRIMINAL LAW - Unlawful killing - Plea of guilty - Whether plea amounts to admission of all facts set up.

CRIMINAL LAW - Appeal against sentence - Application to reduce granted - Unlawful killing - Considerations relevant to level of punishment - Two years.

A plea of guilty does not amount to an admission of all the facts set up in the depositions.

M. was convicted, on a plea of guilty, of unlawful killing following the death of his wife and child in a motor accident, and was sentenced to four years’ imprisonment with hard labour.

Held

That in the circumstances, and having regard generally to the level of punishment adopted by Courts in Australia, the sentence was manifestly excessive and should be reduced to two years.

Appeal Against Sentence

The appellant was charged with unlawful killing, following the death of his wife and child when a car in which they were passengers and which was driven by the appellant travelled off the end of the runway of Lae airport into the sea. The appellant pleaded guilty and was sentenced to four years imprisonment, against which he appealed.

Counsel
Reynolds, for the appellant.
Greville Smith and Laucis, for the Crown.

7 May 1971

MINOGUE CJ CLARKSON KELLY JJ: delivered the following joint judgment:

The substantial ground of appeal is that the sentence of four years’ imprisonment imposed by the trial judge on the conviction of the applicant for unlawful killing was manifestly excessive. It is submitted that the learned trial judge was mistaken or misled, as to certain material facts, that he had given effect to considerations that he should not have taken into account and that he had failed to give effect to considerations that he should have taken into account.

So far as the specific matters on which the applicant claimed that the learned trial judge has thus fallen into error are concerned there is only one which appears to us to have any substance and that is that the learned trial judge wrongly assumed that the applicant was a member of the local Aero Club and that he was thereby familiar with the markings on the airfield at Lae. The material before the learned trial judge did not show that the applicant was a member of the Aero Club so that on that material whatever knowledge he had of the markings would only have been such as he may have gained as a member of the Sky Divers Club or otherwise as a matter of general knowledge, the extent of which did not appear. It is not possible to say what effect the learned trial judge’s assumption that the applicant was familiar with the markings had upon the exercise of his discretion in imposing the sentence which he did, but it is reasonable to suppose that it did have some influence. From a perusal of his reasons, in particular of the second and third paragraphs thereof it does appear that this led him to impute a greater degree of blame worthiness to the conduct of the applicant than was justified and this alone would warrant a review of the sentence.

Quite apart from this however it seems to us that the sentence imposed when considered in relation to the circumstances of this particular case was manifestly excessive. We would agree with respect with the views expressed by members of the Supreme Court of Queensland that it is not possible to standardize sentences for manslaughter arising from criminal negligence in motor vehicle cases. At the same time we think that having regard to the sentences imposed for this type of offence over a number of years, admittedly in a great variety of circumstances, it is possible to say whether the sentence in any particular case when considered in relation to its own facts is or is not manifestly excessive.

The Crown supports the sentence on the basis that this is an exceedingly bad case because a high degree of danger was deliberately assumed by a man in full possession of his faculties. It was said to be a case of near murder. This is a possible view of the facts if one takes the depositions as they stand and draws certain inferences adverse to the applicant. But the Court does not feel free to proceed on that basis. Clearly a plea of guilty does not amount to an admission of all the facts set up in the depositions and a number of matters including inferences which the Crown sought to draw from the depositions were denied by the applicant. Once put in issue those matters should not be accepted unless proved.

Approaching the facts in this manner it can be said that this was admittedly a bad case but not such a bad case as to require a punishment so much more severe than that imposed in other instances which in their own way have presented equally bad features. It is quite incorrect to categorize it as being "near murder".

We would consider that a sentence of four years’ imprisonment in this case to be so much more than what might properly be regarded as a reasonable upper limit in the circumstances as to justify interference by this Court.

We may say that in this particular type of offence we consider that regard may properly be had to the level of punishment adopted by courts in Australia as some sort of general guide to the appropriate range within which the punishment would normally lie. Whilst due regard must always be had to the particular circumstances of each case there is nothing in the present conditions of the Territory which would justify this Court in taking a substantially different approach in dealing with this type of offence than that adopted by the Supreme Courts of the Australian States. At the same time we are fully mindful, as no doubt those courts were, of the necessity to have regard to the denunciatory and deterrent aspects of sentence. On the view of the facts we have taken in this case sentence does not require a denunciatory element.

We consider that the proper sentence in this instance was imprisonment with hard labour for two years. We therefore grant leave to appeal against the sentence, allow the appeal and reduce the sentence to imprisonment with hard labour for two years.

Leave to appeal against sentence granted, appeal allowed and sentence reduced to imprisonment with hard labour for two years.

Solicitor for the appellant: Daniel Lew.
Solicitor for the Crown: P. J. Clay, Crown Solicitor.