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Simbe v The State [1994] PNGLR 38 (2 March 1994)

PNG Law Reports 1994

[1994] PNGLR 38 - Lawrence Simbe v The State 

[1994] PNGLR 38

SC455

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

LAWRENCE SIMBE

V

THE STATE

Waigani

Woods Konilio Sevua JJ

24 November 1993

2 March 1994

CRIMINAL LAW - Supreme Court - Sentence - Plea of guilty - Murder - De facto provocation of attempting to entice wife - Range of sentences - Each case must be decided on its facts.

Facts

Lawrence Simbe pleaded guilty to murder. The trial Judge imposed a sentence of 14 years, with one year deducted for time spent in custody and a plea of guilty. The appellant appealed against his sentence on the basis that the trial Judge failed to give sufficient consideration to the deceased's "de facto provocation" of attempting to entice the defendant's wife, and also that the sentence was far outside the range of sentences imposed for murder under s 300 of the Criminal Code.

Held

1.       The trial Judge made reference to "some justification" for the attack and, therefore, did give consideration to "de facto provocation".

2.       The range of sentences for murder was four years to life imprisonment. Each case must be decided on its own facts. No error was found to have been made by the trial Judge in imposing a sentence of 14 years, and no error was found in his reasons for sentence. The appeal is dismissed.

Cases Cited

State v Giami (1992) unreported, unnumbered NC.

State v Laura (No 2) [1988-89] PNGLR 98.

State v Manea (1993) unreported, unnumbered NC.

Counsel

D Koiget, for the appellant.

R Auka, for the State.

2 March 1994

WOODS KONILIO SEVUA JJ:  This is an appeal against the sentence imposed by the National Court following a plea of guilty to murder. The facts before the National Court were that on 19 December 1991 the appellant attacked the deceased with a bush knife and inflicted a substantial cut to the chest which, in effect, sectioned most of the ribs and caused his immediate death. The background to the killing was that the appellant believed the deceased was trying to entice the appellant's wife into having some sexual liaison. The wife had told the appellant about these advances. On the day in question, the appellant followed the deceased to a garden area where the wife was working and, upon seeing what he believed were signals to the wife trying to attract her attention and entice her, he approached the deceased, chased him with a bush knife, and chopped him and killed him.

In his evidence, the appellant said that he only wanted to put a mark on the deceased. The trial Judge imposed a sentence of 14 years, but deducted a total of one year for the time spent in custody and for the plea of guilty.

It has been submitted on behalf of the appellant that the trial Judge erred in that he failed to give sufficient consideration to the de facto provocation of the attempt to entice the wife and, further, that the sentence imposed was far outside the range of sentences imposed for murder under the Criminal Code  s 300 and, thus, was out of all proportion to the gravity of the offence.

The trial Judge, in his judgment, did make reference to the suggestion of provocation. He said, "... there appears to be some justification". However, he added, "Your attack on him with a bush knife when he was unarmed was not justified. Furthermore, he was not caught in the act of sexual intercourse with your wife so as to justify an attack on an unarmed man". So, it is clear that His Honour did give consideration to the circumstances that led up to the offence.

The next matter to consider is whether the sentence was out of all proportion to the range of sentences imposed and to the gravity of the offence. Criminal Code s 300 states that the sentence for murder is life imprisonment. However, usually the Court has acted under s 19 and imposed a term of years.

The records show that the terms of years imposed in 1991 and 1992 for murder ranged from four years imprisonment to life imprisonment. This indicates quite clearly that each case has been determined on its own facts and, thus, there may be a very wide variation in the circumstances that lead to a person being killed in a s 300 situation. His Honour Kidu CJ noted in State v Manea (1993, unreported) that "sentences vary for the usual reasons, such as plea or trial, young age of offender, provocation not amounting to defence and so forth". In State v Laura (No 2) [1988-89] PNGLR 98 at 99, he said:

"I consider that a murder case with no special aggravating factors where the accused pleads guilty should attract a sentence of six years. Where a sentence of less than six years is imposed, I believe that it should only be in a case where there are special mitigating factors such as the youthfulness of the accused (for example, 14 or 15 years old) or the very advanced age of the accused. In a contested case, it should be between 8 to 12 years, and more in a case where aggravating factors are shown by the evidence. Such factors are too numerous to list here and must be determined on a case-to-case basis".

That is the principle. Each case of murder must be decided on a case-by-case basis, but always remembering that the sentence laid down by s 300 is life imprisonment and the term of years is by virtue of s 19.

In this case before us, despite the appellant's assertion that he only meant to mark the deceased, he inflicted a blow to the chest which was of such force that it fractured all the ribs, in effect smashed the rib cage. This was no accident. Also, it was an attack on an unarmed man, who had no idea that he was in some danger or could be in danger.

The Court has often repeated the concern that people too often take the law into their own hands, and we must repeat that assertion. The trial Judge here has been consistent with his own tariff. He gave a similar sentence at the time in State v Giami.

We say that it is not a matter of a tariff for particular types of murder but, rather, that each case must be decided on its own facts, bearing in mind the various factors that are involved in each case, the gravity of the attack, and the concern of the Court at people who take the law into their own hands.

We find no error by the Judge and his reasons for sentence, and we find that the sentence is one that he was entitled to give for this murder.

We dismiss the appeal.

Lawyer for the appellant: Public Solicitor.

Lawyer for the State: Public Prosecutor.