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Acting Public Prosecutor v Apin [1977] PNGLR 107 (28 April 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 107 - Acting Public Prosecutor v Kanga Apin 

[1977] PNGLR 107

SC114

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE ACTING PUBLIC PROSECUTOR

V

KANGA APIN

Waigani

Frost CJ Prentice DCJ Williams J

27-28 April 1977

CRIMINAL LAW - Appeal against sentence - Conviction for unlawfully wounding with intent to do grievous bodily harm - No appeal brought against suspended sentence imposed on victim for previous attack upon the respondent - Desirability of equal treatment a consideration to be taken into account - Sentence considered inadequate but appeal dismissed.

On appeal against inadequacy of sentence in circumstances where the respondent was convicted of wounding with intent to do grievous bodily harm, sentenced to four months imprisonment, suspended upon entering into a recognizance in the sum of K50 to be of good behaviour for a period of two years, the evidence disclosed that the respondent inflicted two wounds with a knife, one on the neck and one on the ear, allegedly as a pay back to one Henny Moro who had some six months previously inflicted three small wounds to the face of the respondent. On the same day as the respondent was convicted and sentenced, Henny Moro was also convicted of unlawfully wounding the respondent and sentenced by the same Judge to three months imprisonment, suspended upon her entering into a recognizance to be of good behaviour.

Held

(1)      In the circumstances the sentence imposed on the respondent was insufficient and inadequate.

(2)      The charge against the respondent being a far more serious one than that against Henny Moro, a clear distinction ought to have been made at the time between their relative degrees of guilt.

(3)      Six months having elapsed since the sentences were imposed, no appeal having been brought against the sentence imposed on Henny Moro which would preserve their relative positions, and taking into account the consideration that any increase in sentence for the respondent may not now be comprehensible to the two women involved and the people of the area concerned, the Court should in the exercise of its discretion, dismiss the appeal.

Appeal Against Sentence

This was an appeal pursuant to s. 23 of the Supreme Court Act, 1975 on the ground of inadequacy, against a sentence of four months imprisonment, suspended upon the respondent entering into a bond to be of good behaviour for two years, on a conviction of unlawfully wounding with intent to do grievous bodily harm.

Counsel

K. B. Egan and B. T. Sharp, for the respondent.

G. C. Lalor, for the appellant.

28 April 1977

FROST CJ PRENTICE DCJ WILLIAMS J: The respondent was, on the 14th October, 1976, convicted of an offence for that on the 18th August, 1976 with intent to do some grievous bodily harm to one Henny Moro he unlawfully wounded her. The sentence imposed on the 15th October, 1976 was four months imprisonment with hard labour commencing on the 12th October, 1976 suspended as from the 15th October, 1976 upon the respondent entering into a recognizance in the sum of K50.00 to appear before a Judge of the National Court if called upon during a period of two years from the 15th October, 1976 and in the meantime to keep the peace and be of good behaviour, especially towards Henny Moro. She appears to have been in custody for a short period.

The Public Prosecutor contends in this Court that the sentence imposed was insufficient and inadequate.

The facts disclosed by the evidence are that the respondent inflicted two wounds with a knife, one on the neck and one on the ear. It appears that the attack was a planned and premeditated one. Having regard to all the circumstances surrounding the matter, and the fact that the offence of which the respondent was convicted was one carrying a maximum sentence of life imprisonment, the Court is of the opinion that the sentence imposed was insufficient and inadequate and one, were it not for the considerations to which reference will now be made, which called for variation by this Court.

Henny Moro is the wife of one Gende Lucas, a police constable. There is some evidence, which is equivocal, that the respondent was his second wife. Whether or not this is the fact does not matter greatly because plainly some de facto relationship existed between the respondent and Gende Lucas. Friction developed between the two women and Gende Lucas.

Although it does not appear from the appeal book, we were informed by counsel who appeared with the Public Prosecutor that on the same day upon which the respondent was sentenced Henny Moro came before the Court and was convicted of unlawfully wounding the respondent. This offence occurred some six months previously, there apparently being some delay in bringing her before the National Court. The basis of the charge was that she inflicted three small wounds to the face of the respondent. This offence is important because the respondent claimed that she acted in pay back. Henny Moro was sentenced to imprisonment with hard labour for three months suspended also upon her entering into a recognizance to be of good behaviour.

No appeal to this Court was made by the Public Prosecutor against the sentence imposed upon Henny Moro. Counsel for the Public Prosecutor said that was for the reason that the maximum penalty for the offence was three years only and it was not considered that, in the circumstances, an appeal was sustainable.

Some six or seven months have elapsed since the sentences were imposed upon the two women and their release upon recognizance. The subsequent relationships between them and their relationships with Gende Lucas are unknown to this Court. So far as is known neither of the women has been charged with any breach of recognizance.

Although the assaults between the two women were separated by approximately six months in time the fact remains that they were each dealt with on the same day by the National Court. The trial judge was, apparently, not disposed to draw any distinction of substance between their relative degrees of guilt, notwithstanding the fact that the charge preferred against the respondent was a much more serious one. The Court is of the opinion that that distinction should, at the time, have been drawn. It could then have been explained in clear terms to the women concerned and to the public at large.

A custodial sentence imposed by this Court would necessarily be implemented by the issue of a warrant of commitment as a result of which the respondent would be taken into custody wherever she may be and regardless of the fact for all that is known to the Court differences between the parties may have been forgotten and without any explanation comprehensible to the women and the people of the area concerned as to the distinction to be drawn between the two cases. This may well be productive of a feeling that justice has not been equally administered.

The Court is of opinion that the Public Prosecutor should have kept the relative positions between the two women open by challenging both sentences. For the foregoing reasons the Court is of the opinion that in the exercise of its discretion the sentence imposed upon the respondent should not be disturbed.

Appeal dismissed.

Solicitor for the appellant: W. J. Andrew, Acting Public Solicitor

Solicitor for the respondent: K. B. Egan, Public Prosecutor