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Naroi v The State [1987] PNGLR 293 (25 August 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 293 - Peremai Naroi v The State 

[1987] PNGLR 293

SC343

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PEREMAI NAROI

V

THE STATE

Waigani

Woods Los Hinchliffe JJ

25 August 1987

CRIMINAL LAW - Sentence - Plea of guilty - Version of facts upon which court to act - Where divergence not raised court entitled to act on State version - Procedure where divergence.

Held

In imposing a sentence on a plea of guilty the trial judge is entitled to assume, where no divergence of facts is raised, that the facts as presented by the State are admitted by the defence.

Imiyo Wamela v The State [1982] PNGLR 269 at 280, applied.

R v Taylor (1986) 84 Cr App R 202 and Thompson v The Queen [1973] TASStRp 8; [1973] Tas SR 78 at 89, considered.

Where, on a plea of guilty, there is a divergence between the defence version and the prosecution version of the facts of the offence in question, it is for the prosecution to remind the trial judge as early as possible of the facts upon which there is divergence and if either side wishes for the dispute to be resolved, they should so submit to the judge.

Cases Cited

Imiyo Wamela v The State [1982] PNGLR 269.

R v Taylor (1986) 84 Cr App R 202.

Thompson v The Queen [1973] TASStRp 8; [1973] Tas SR 78.

Leave to Appeal and Appeal

This was an application for leave to appeal and an appeal against severity of sentence for unlawful assault occasioning grievous bodily harm.

Counsel

E V Batari, for the appellant.

C Russell, for the respondent.

25 August 1987

WOODS J: This is an appeal against the severity of the sentence imposed by the National Court on 19 November 1986 following conviction on a charge of unalwful assault causing grievous bodily harm.

The main contention by the appellant on the severity of the sentence is that this was a plea of guilty and that his plea admitted only the essential elements of the charge and that for the judge to conclude that serious injuries were caused to the victim and such injuries led to the deterioration of the victim’s health thereby placing this offence in a most serious category is an identifiable error.

The case in the depositions was that on 6 January 1985, the accused and his wife were in a canoe. The accused struck his wife on the head with an axe and struck her on the chest with a paddle. Other witnesses deposed to the wife being seriously injured; that she was unconscious for a time and lost a lot of blood; that she got weaker later as a result of the injuries; that she had difficulty breathing with chest pains and that she had a cut across her head and a chest wound. There was no medical treatment given to the victim nor was there any medical evidence and apparently the wife died two weeks later.

The accused on arraignment was arraigned that he cut his wife on the head with an axe and caused a wound to her chest by using a canoe paddle and he admitted that this was true. Further, in his record of interview he admitted:

·—      hitting his wife with a paddle,

·—      having an argument with his wife,

·—      “I only hit her at the back of the head with the handle of my paddle,”

·—      she did suffer,

·—      admitted beating her up.

In his submissions, counsel for the appellant has not denied that there were two wounds to the victim.

The law is well settled, that where on a plea of guilty there is a divergence between the defence and prosecution version of the facts of the offence in question, it is for the prosecution to remind the trial judge as early as possible of the facts upon which there is divergence. In any event if either side wish for the dispute to be resolved they should so submit to the judge. I refer here to R v Taylor (1986) 84 Cr App R 202. And (at 203) I quote what was said by Parker LJ:

“It should be stressed that if there is a divergence of which the Prosecution are aware, and in the normal event they will be aware, and should be made aware, it is for the Prosecution to remind the Judge as early as possible in the case of the points upon which there is divergence and what this Court laid down as the proper method of dealing with it in R v Newton (1983) 77 Cr App R 13. If the Prosecution are unaware, then as soon as the matter arises, if the Defence do not raise the matter, the Prosecution should do so. If either side wish for the dispute to be resolved they should so submit to the Judge. ... In the present case, the conflict not having been resolved and the Defence version given not being so transparently unacceptable that the learned judge was entitled to sweep it aside, he should have proceeded on the basis of that version and this Court must so proceed.”

However, are the facts of these cases similar. In Taylor’s case the defence version of the facts was crucially and radically different from the version which had been opened by the prosecution and was accepted by the judge. I refer here (at 203) of Taylor’s case where the judge pointed out:

“that the part of Andrew in the matter was entirely peripheral and could not properly have attracted more than a short sentence of imprisonment, if any. So far as Brian was concerned it was a case of exchange of punches with the taxi driver, after which he and his brother Andrew had both made off. According to that version, there was no question of the taxi driver having been dragged into the road from his taxi and subjected to a series of blows whilst lying on the ground.”

I do not think that there is similarity in the case before us today with Taylor’s case. In the case before us, the accused admitted the injuries to the head and the chest in his arraignment and he admitted hitting her and beating her in his record of interview. He did not at any stage deny the injuries to the victim, it is just that in his record of interview, he tried to play down the injury. The defence did not dispute the arraignment or the depositions at the trial. The prosecution saw no need to raise any divergence following the arraignment. In the case before us therefore, I must find that in the words of Taylor’s case the defence version of the facts was not crucially and radically different and I further say that the defence version as now submitted to me on this appeal is quite transparently unacceptable.

The appellant further submits that in any event the sentence was manifestly excessive in that it was disproportionately high in the circumstances of the appellant and the crime itself.

The maximum penalty provided for in s 319 of the Criminal Code (Ch No 263) is seven years imprisonment with hard labour. The judge in this case imposed a sentence of five years which is approximately two thirds of the maximum sentence. There is clear evidence of two serious wounds and an axe to the head is serious enough to warrant application of any maximum penalty available. I therefore feel that five years is not excessive. There have been sentences of five years imposed for grievous bodily harm over the last few years and I therefore feel that it was open to the judge to impose this penalty. Whilst I would grant leave to appeal, having heard the appeal on its merits I would dismiss the appeal.

LOS J: I have read the reasons of Hinchliffe J. With respect, I agree with his Honour’s decision and the reasons thereto.

HINCHLIFFE J: This is an appeal against a sentence of the National Court given at Kerema on 19 November 1986.

In the National Court the appellant said, “It is true,” when he was arraigned on the following facts taken from the judge’s notes:

“On Wednesday 16 January 1985, accused and wife Taita Ne’en, left their village to make sago — argument — accused cut wife across the head with an axe, (30 cms), second wound caused to victim’s chest by using an canoe paddle — deep wound to chest — someone intervened — taken back to village — (died two weeks later).”

The appellant’s lawyer has submitted that the trial judge should have sentenced the appellant on the appellant’s version of the facts and not the facts as stated above. It is clear that the “State facts” and the “defence facts” were somewhat different and it is also clear that his Honour sentenced on the facts as alleged by the State.

It is of considerable importance to note that in the National Court the facts as alleged by the State were not disputed and it appears that the different fact situation was never raised by the State or the defence.

In Imiyo Wamela v The State [1982] PNGLR 269 at 280-281, the Supreme Court stated the following:

“This matter has been amply dealt with in Koniel Alar and Hosea Biu v The State [1979] PNGLR 300 at 307, where in deciding what version of the facts should the trial judge accept for the purpose of imposing sentence upon a plea of guilty, the Supreme Court cited with approval the following passage per Bray CJ in Law v Deed [1970] SASR 374 at 377-378:

‘It is clear that that plea admits no more than the essential ingredients of the offence and as I have said mens rea is not an essential ingredient of this offence. The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the defendant alone. The attention of the Supreme Court has been mainly directed to consideration of the first of these two propositions (R v Vecsey [1962] SASR 127; R v Maitland [1963] SASR 332). Broadly speaking, these cases lay it down that, if a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution, he must do so by sworn evidence from himself or someone else: if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then “it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused”: Maitland’s case (supra) ... but it is of great importance, despite whatever inconvenience may be caused, that the rights of the defendant should be preserved to have nothing beyond the essential legal ingredients of the crime assumed against him if it is denied by him, unless and until it is proved to the satisfaction of the court by sworn evidence subject to cross-examination.

The right of the defendant must be no less with regard to circumstances of mitigation such as those claimed in the present case. Here, however, there is no possibility normally of comparing sworn statements with sworn statements or unsworn statements with unsworn statements. The facts normally are within the knowledge of the defendant alone. Nevertheless, the court must “within the bounds of reasonable possibility” accept the defendant’s version.

Normally that version is put forward by the Defendant’s counsel if he is represented or, if he is not, by himself without his being sworn. The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving that defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call. Some stories which might appear incredible when related in oratio obliqua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.’

See also the following in R v Tait [1979] FCA 32; (1979) 24 ALR 473 at 483:

‘When a plea of guilty avoids the necessity for a trial, it is no doubt convenient for the facts relevant to sentence to be stated from the bar table to the extent to which those facts are agreed or, not being reasonably open to challenge, are unchallenged. But if one of the parties invites the court to act upon an alleged fact or circumstance, whether favourable or unfavourable to the defendant, which is not common ground between the Crown and the defendant, that fact or circumstance, should be proved by the calling of evidence by the party on whom the evidentiary onus rests. The strict rules of evidence can be waived if the proof tendered is sufficiently cogent, but a finding on the relevant matter cannot be sought in reliance merely upon an unsupported assertion from the bar table if the truth of that assertion is not accepted by the other party (cf Lovelock v The Queen [1978] FCA 8; (1978) 19 ALR 327 at 332-333; R v Kane [1974] VicRp 90; [1974] VR 759 at 762). In this case, however, no evidence was called to resolve the challenged or doubtful issues. In the circumstances, we think we should deal with these appeals on the basis, favourable to each defendant, which his Honour adopted.’

We consider this exposition succinctly states the practice long observed in Papua New Guinea and still appropriate.”

In Thompson v The Queen [1973] TASStRp 8; [1973] Tas SR 78 at 89, Neasey J said in the Court of Criminal Appeal:

“It is not necessary, for example, for the judge to enquire specifically in every case whether the material put before him by the Crown, whether in the form of depositions or written unsworn statements, is admitted by the prisoner, whether it constitutes ‘evidence’ or ‘statements’. For instance, if the prisoner’s counsel, if he is represented by counsel, addresses the Court in mitigation and indicates no disagreement with that material, the judge is entitled to assume that he admits it.”

Again in R v Taylor (1986) 84 Cr App R 202 at 203, Parker LJ in the Court of Appeal said:

“It should be stressed that if there is a divergence of which the prosecution are aware, and in the normal event they will be aware, and should be made aware, it is for the prosecution to remind the judge as early as possible in the case of the points upon which there is divergence and what this Court laid down as the proper method of dealing with it in R v Newton (1983) 77 Cr App R 13. If the prosecution are unaware, then as soon as the matter arises, if the defence do not raise the matter, the prosecution should do so. If either side wish for the dispute to be resolved, they should so submit to the judge.”

It seems to me from the above cases, that it is now clear that where the divergence of facts is not raised in the National Court then the judge can assume that the “State facts” are admitted by the defence. On that basis I am satisfied that the trial judge did not err in law when dealing with the appellant on the facts as outlined by the State.

The appellant’s lawyer has also submitted that a sentence of five years imprisonment is excessive under the circumstances. I disagree with that submission. The maximum penalty for grievous bodily harm under the Criminal Code is seven years imprisonment. I am of the view that a person who inflicts a wound to the head with an axe and then plunges the handle of a canoe paddle into the chest of the person would be inviting a court seriously to consider the maximum penalty. The appellant inflicted two very serious wounds to his wife which caused a deterioration in her health. I am satisfied that the trial judge was not excessive in sentencing and, if anything, he was lenient.

Whilst I would grant leave to appeal, I would dismiss the appeal.

Leave to appeal granted

Appeal dismissed

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Public Prosecutor.