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Kaveku, Public Prosecutor v [1977] PNGLR 110 (29 April 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 110 - Public Prosecutor v Terrence Kaveku 

[1977] PNGLR 110

SC113

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

TERRENCE KAVEKU

Waigani

Frost CJ Prentice DCJ Williams J

27 April 1977

29 April 1977

CRIMINAL LAW - Appeal against sentence - Two convictions for unlawfully wounding with intent to do grievous bodily harm - Sentences to be served consecutively - Totality principle - Total period of imprisonment to be not excessive - Sentences of 3 years imprisonment substituted for sentences of 15 months imprisonment.

On appeal against inadequacy of sentences in circumstances where the respondent was convicted on two charges of unlawful wounding with intent to do grievous bodily harm (both instances being premeditated and involving weapons) and was sentenced in each case to 15 months imprisonment, such sentences to be cumulative.

Held

(1)      In the circumstances the sentences imposed were inadequate.

(2)      When consecutive sentences are imposed a final review of the sentence is to be made by the Court to ensure that the total is not excessive.

Secretary for Law v. Suares, [1974] P.N.G.L.R. 288 at p. 290, followed.

(3)      Each conviction justified a sentence of three years imprisonment.

(4)      (Frost C.J. dissenting) Having regard to the totality principle, sentences of three years imprisonment should be imposed, the second sentence to be cumulative on the first.

Appeal

These were appeals pursuant to s. 23 of the Supreme Court Act against inadequacy of sentences of 15 months imprisonment, the second sentence to be cumulative on the first, imposed on convictions of unlawful wounding with intent to do grievous bodily harm.

Counsel

KB Egan and BTJ Sharp for the appellant

GC Lalor for the respondent

Cur. adv. vult.

29 April 1977

FROST CJ: These are appeals by the Public Prosecutor pursuant to the Supreme Court Act s. 23 against the decision of a judge of the National Court as to two sentences, each of 15 months to be served consecutively, imposed upon the respondent at the Lae sittings in October 1976. The convictions were both for unlawful wounding with intent to do grievous bodily harm.

The cases are unfortunate because both accused and his two victims, a man called Kefa and a woman called Joyceline (Jocelyn) are from Tufi and appear originally to have had good relations between them. The accused has had some secondary schooling in the Northern District, as it was, and a fairly continuous record of employment in various parts of Papua New Guinea over a number of years.

On psychiatric examination the respondent was found to be suffering no mental illness. He had two prior convictions in the lower courts, one for personal violence and the other for damage to property. Also to be taken into account was that he had spent about 4 months in custody.

I agree with the statement of the facts set out in the judgment, which I have read in draft, of the Deputy Chief Justice and Williams J.

The effect of s. 23 is to confer an unfettered discretion on this Court to vary the sentence (R. v. Pia-Afu[cv]¹) but as the Court said in that case, “This, however, does not mean that this court should interfere with a sentence pronounced by a trial judge unless it is clearly satisfied that the sentence should be altered.” — at p. 396.

The offence of which the respondent was convicted on each occasion is a grave one punishable by life imprisonment. Both offences were premeditated and carried out with great determination. The second offence in my opinion was the worse, involving as it did a flagrant breach of public order. Upon the facts of each case I consider that the sentences were inadequate and should be increased.

I agree with the opinion of my brother judges expressed in their joint judgment that each conviction justifies a sentence of three years’ imprisonment. But there is another principle which is applicable in this case. It is the totality principal which requires that when consecutive sentences are imposed a final review of the sentence is to be made by the Court to ensure that the total is not excessive. Secretary for Law v. Suares[cvi]² per Prentice J. at p. 290; R. v. Bocskei[cvii]³; R. v. Vickers[cviii]⁴.

Having regard to the facts that what led the respondent to commit both offences was the single-minded resentment he felt over his wife’s being deprived of her children, involving both Kefa and Joyceline, and to a lesser extent that both Kefa and Joyceline fortunately speedily recovered from their wounds, I consider that the total period of custody should not exceed five years, to be served without remission, as in all cases in Papua New Guinea. I regret that I am thus unable to agree with the view taken by my brothers.

I would therefore allow the appeal and vary the sentences imposed; in the first case by substituting a sentence of two years’ imprisonment with hard labour, and in the second a sentence of three years’ with hard labour, the sentences to be served consecutively.

PRENTICE DCJ WILLIAMS J: Cumulative sentences each of 15 months imprisonment, were imposed on the respondent in respect of two offences each of “with intent to do grievous bodily harm — unlawful wounding”, which were committed on 16th February and 3rd March, 1976.

The appellant, proceeding under s. 23 of the Supreme Court Act 1975 complains of the inadequacy of these sentences considered severally and as an accumulation. Respondent’s counsel submits in answer, that even were each sentence to be considered inadequate (which he does not concede) the totality of sentence is adequate in the circumstances and having regard to all the objects of punishment. He cites Secretary for Law v. Suares (5) in support of his proposition.

Each assault was of a serious nature. Both appear to have had an element of deliberation. It is plain that the respondent has had a somewhat unfortunate life. He has for some time entertained a grievance against the first husband of his wife. This man who had received his (own) children from the wife’s custody, and was thought by the respondent to have failed to carry out the recommendation of a Welfare Officer, became his first victim. The respondent sought the victim out, armed with a 3 foot long very sharp bushknife. Having succeeded in separating the victim from his three companions he proceeded to attack him, inflicting 3 cuts upon him. It is clear that the attack was a ferocious one and that the victim was lucky to escape without permanent injury or loss of his life. The respondent explained that he was intending to teach the victim a good lesson and to hurt him badly so that he would be sent to hospital. The attack involved a determined pursuit.

After being charged with the offence constituted by the abovementioned attack, the respondent was admitted to bail. Some three weeks later he learnt from his wife that his cousin sister was at the Lae District Court looking after his wife’s children on behalf of her first husband (his first victim). His wife was said to have been depressed for some time and to have thrice attempted suicide. Enraged, he armed himself with what might be described as a flail or mace — made seemingly from a heavy plastic-covered battery cable ending in a large bolt. Its appearance in Court is that of a really wicked weapon. He rushed to the court precincts and in the presence of the waiting litigants, police and officials, frenziedly pursued the unfortunate cousin sister, whirling the weapon about. He succeeded in hitting her twice, causing a deep cut to her head (with severe blood loss) and a fracture of the skull. His actions at that time and until he returned to his house were plainly a menace to public order. Fortunately neither of his victims has suffered permanent maiming. The respondent stated that his anger in regard to the second victim was due to a combination of what he regarded as her disloyalty in taking sides against him in the custody dispute, and of what he regarded as unfair treatment meted out to him some years before in regard to a job and as to money claims.

The respondent is 33 years of age. He attained form II standard at the Martyrs School in the Northern District. Psychiatric examination did not reveal an abnormality. He had had two prior brushes with the law, some years before — each of which involved an element of violence — one to property and one to the person. He had experience in the police force and in private employment. Both the incidents subject of the offences currently being considered, took place in the City of Lae. He spent 4½ months in custody awaiting trial.

The respondent’s record and the circumstances of these two offences indicate quite clearly that the respondent requires a marked personal deterrence from resort to violence. The second offence committed while awaiting trial on the first charge, indicated on his part a total lack of regard for the law. Our view is that an accumulation of sentences was called for (as indeed is conceded by defence counsel) and that in reality the second offence called for punishment more severe than that to be awarded for the first. The policy of the Legislature in regard to offences of this character is illustrated by the maximum penalty provided for by s. 323, viz. life imprisonment. In our opinion, there would rarely be instances of this kind of offence which could be met with other than a substantial sentence of imprisonment in the current conditions in Papua New Guinea. Having regard to all the matters that may be urged in extenuation of the respondent’s giving way to violent anger, to all the circumstances of the two assaults and to the respondent’s personal difficulties, we are nevertheless satisfied that the sentences imposed are clearly inadequate and should be increased as is sought by these appeals.

It is our opinion that the first offence calls for a minimum sentence of three years imprisonment with hard labour. Despite our conviction that the second offence should receive a greater sentence we take the view that in order to avoid the imposition of a totality of sentence that could crush the respondent’s initiative towards reformation of his life, the sentence for the second offence should also be for three years, made cumulative on the first.

Appeal allowed; sentences varied by substituting in the first appeal, a sentence of 3 years’ imprisonment with hard labour, and in the second appeal, a sentence of 3 years’ imprisonment with hard labour, the latter sentence to take effect from the expiration of the sentence for the offence the subject of the first appeal.

Solicitor for appellant: K. B. Egan, Public Prosecutor

Solicitor for respondent: W. J. Andrew, Acting Public Solicitor

[cv][1971-1972] P. & N.G.L.R. 393.

[cvi][1974] P.N.G.L.R. 288.

[cvii][1970] Crim. L.R. 593.

[cviii] [1974] Crim. L.R. 56.