Papua New Guinea Law Reports - 1977
[1977] PNGLR 209
SC118
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
THE PUBLIC PROSECUTOR
V
YAPUNA KASO
Waigani
Frost CJ Prentice DCJ Saldanha J
27 June 1977
30 June 1977
CRIMINAL LAW - Appeal against sentence - Inadequacy of sentence - Murder - Entry of plea of guilty - On depositions offence of manslaughter clearly raised - Conviction treated as one for manslaughter on sentence by trial judge - Appeal treated on same basis as by trial judge - Term of 4 years 9 months imprisonment substitruted for term of 16 months imprisonment (taking into account 3 months in custody awaiting trial).
On appeal against inadequacy of sentence in circumstances where the respondent pleaded guilty to, and was convicted of, murder under s. 305 of the Criminal Code and sentenced to imprisonment for 16 months (taking into account 3 months in custody awaiting trial), the evidence disclosed that the respondent whilst affected by liquor, went to the nearby village of Puri in search of beer where he came upon a party of men from his own village in conflict with a group of Puri men. The respondent, who was unarmed, attempted to stop the fighting in the course of which he was whipped by a Puri man and subsequently attacked by the deceased who was armed with an axe. In the course of this fight the deceased was killed by a blow, delivered with the blunt end of the axe to the deceased’s head. Although the respondent pleaded guilty to murder and the plea was accepted by the trial judge, in his remarks on sentence the trial judge said that the offence was “closer to manslaughter than to murder”, and proceeded to sentence the respondent as for manslaughter;
Held
(1)      On the most favourable view of the facts it was doubtful whether the respondent could have been found guilty of murder; and even on a less favourable view of the facts the respondent would have been entitled to rely upon the defence of provocation thus reducing the offence to manslaughter.
(2)      In all the circumstances the respondent’s conviction for murder was unsatisfactory, but there being no appeal against conviction the conviction for murder must stand.
(3)      In the interests of justice the question of adequacy of sentence must be considered on the basis that the conviction was a conviction for manslaughter.
(4)      In all the circumstances, particularly the use of an axe in the comparatively well settled district, the sentence of 16 months imprisonment (taking into account 3 months in custody awaiting trial) was inadequate and a sentence of 4 years 9 months imprisonment should be substituted.
Appeal
This was an appeal pursuant to s. 23 of the Supreme Court Act 1975 against sentence on the ground of inadequacy.
Counsel
J. L. Cagney, for the appellant.
G. C. Lalor, for the respondent.
Cur. adv. vult.
30 June 1977
FROST CJ: This is an appeal against a decision of the National Court on 5th April, 1977 at the Goroka sittings whereby, upon a plea of guilty, the respondent was convicted on a charge of murder under s. 305 of the Criminal Code, for which life imprisonment may be imposed.
The grounds of appeal are that the sentence imposed, which was for imprisonment for 16 months, but taking into account a period during which the respondent was in custody awaiting trial effectively for 19 months, is inadequate and insufficient, and that in imposing sentence the trial judge did not give sufficient weight to some considerations and undue weight to another.
The appeal is brought pursuant to the Supreme Court Act 1975, s. 23. Upon such an appeal the Supreme Court has an unfettered discretion to vary the sentence imposed by the trial judge. The only qualification is that the Court will not interfere with the sentence pronounced by the trial judge unless it is clearly satisfied that the sentence should be altered. Regina v. Pia-Afu[cxcix]1.
The facts are that on the afternoon or evening of 24th December, 1976 a party of men from Asimango, the accused’s village, went to the nearby village of Puri in which the deceased lived. There are conflicting statements in the depositions as to whether the respondent went with the main party or later, as he claimed in his record of interview, affected by liquor and looking for more beer, but he was certainly there when trouble arose between the men of the two villages. The reason for the incursion was that the Asimango men believed that a Puri man had been involved in an affair with a woman, apparently the sister of the accused, from their village.
From the depositions of a councillor and a village peace officer from Asimango, it is quite clear that the men from Asimango grabbed the man whom they suspected and mauled him. After repeated attempts to stop the disturbance, an Asimango councillor succeeded in getting the men to listen to him. But then a Puri boy got a whip, which was described as “a kind of tube and inside of it was wire”, and came and whipped the respondent, striking him at least one hard blow on the back. The respondent chased the boy who ran away. The boy returned with a piece of wood. When the Puri men saw this they also got their sticks and a stick and fist fights developed between the two clans.
At this stage the deceased came down to the main road separating the villages. He was armed with an axe. There is no suggestion that the respondent was armed. A fight then developed between them during which the deceased was killed by a blow, delivered with the blunt end of the axe to the deceased’s head.
It is convenient now to turn to the course that the proceedings took before the trial judge. The accused man was duly arraigned upon the charge of murder contained in the indictment. It is to be assumed that in accordance with the usual practice the accused admitted the elements of the offence. No application having been made to the contrary by counsel for the accused under s. 575 of the Code, after the depositions were tendered and read by the trial judge, a plea of guilty to murder was entered. However, in his remarks on sentence the trial judge said that the offence was “closer to manslaughter than to murder”, and obviously then proceeded to sentence the respondent as for manslaughter, and indeed imposed a sentence at the lower end of the scale having regard to the seriousness of the offence. His Honour said he regarded the case as “quite a special one”.
At the stage of entering the plea the case was either one of murder or manslaughter. As the trial judge must have had some doubt about the matter the doubt should have been resolved in favour of the accused and the proper course, in my opinion, would have been for his Honour to have indicated that he did not propose to enter a plea of guilty. If the state prosecutor was not then prepared to accept a plea to manslaughter in full satisfaction of the indictment, a plea of not guilty should have been entered and the trial allowed to proceed. In fact there is ample material in the depositions to raise a defence to the charge, certainly upon the ground of provocation, which under s. 308 of the Code reduces murder to manslaughter.
In his record of interview and also in his statement to the District Court, the accused also claimed that, before the fatal blow was struck, the deceased and his friends surrounded him as he lay on the ground and were beating him all over his body. This might suggest self-defence, with the possibility of an acquittal. But having regard to the fact that the only lethal weapon available, the axe, was lying on the ground, the judge was, I consider, entitled, in the absence of any application under s. 575, to take the view that the respondent was not taking that defence.
Turning to the defence under s. 308 and s. 271 of the Code the statements in the depositions are all one way, that the deceased, elderly and married with five children as he was, came into the fight armed with a tomahawk and struck the respondent with it, causing him to fall to the ground. One witness said that the respondent was hit three or four times with a tomahawk. He was certainly hit on the head, as the trial judge noted in his remarks on sentence that the respondent had a significant scar on his head. The respondent, when attacked, was either unconscious or at least dazed, and lying on the ground. It was in that position that when the deceased dropped his tomahawk upon the ground the respondent saw it, quickly took it up and suddenly struck the deceased the blow which caused his death. The actions of the deceased clearly, in my opinion, raised the defence of provocation reducing murder to manslaughter. In view of the respondent’s condition and the fact that the blunt end of the axe was used, the defence is also raised, but perhaps less strongly, of lack of the necessary intent.
It must be understood that these references to the depositions are made, not to try the case on the facts, but only to determine the propriety of the trial judge’s acceptance of the plea. For in Papua New Guinea full regard must be had to the special circumstance that because English is not generally understood the accused is incapable of pleading in the terms of guilty or not guilty.
In all the circumstances the respondent’s conviction for murder was, in my opinion, unsatisfactory. Naturally there was no appeal on the part of the respondent. I consider that, consistently with the interests of justice, the only course this Court can take is to treat the conviction, as the trial judge in effect did, as one of manslaughter.
The trial judge took the view that there was no need “to load” the sentence so as to deter the communities involved, having regard to the fact that the trouble had been straightened between the two clans. I would uphold the submission of counsel for the appellant that having regard to the seriousness and prevalence of axe attacks, particularly in the Highlands, the trial judge erred in this respect. I consider also that too much weight was given to the fact that the respondent was prepared to make admissions inculpating himself in the offence, as the evidence against him was overwhelming that it was he who struck the blow which caused the deceased’s death. The only issues if the case had gone to trial could have been whether upon the facts the crime was reduced from murder to manslaughter, and intent.
In all the circumstances I consider that the sentence was inadequate. Giving full weight to the provocation under which the respondent acted, in my opinion a sentence of 4 years and nine months should be substituted.
PRENTICE DCJ: On being arraigned for murder by an axe blow, the respondent pleaded guilty. No application was made by his counsel in regard to the plea. The learned trial judge after reading the transcript of the committal proceedings, accepted the plea, convicted the respondent of murder, and sentenced him to 16 months’ imprisonment. The accused had then been in custody 3 months.
The Public Prosecutor appeals against the leniency of the sentence. On the face of it, 19 months (effective) imprisonment would appear to be inadequate for a murder involving the use of an axe, in a comparatively well-settled district. However the trial judge in his remarks on sentence, expressed a view as to the crime in these terms, “This is closer to manslaughter than to murder”; and again, “this prisoner did not go looking for trouble, he simply happened to walk into it”.
Plainly, on the transcript which was before the judge, it was possible (though unlikely) that on his trial the accused could have argued a case of self-defence. And it was probable that a case of provocation such as would have reduced the crime to manslaughter would have been put. The trial judge appears to have selected that material in the transcript which was of the construction most favourable to the accused and come to the conclusion that the case was really one of manslaughter. In my opinion this course was not open to him, were the plea of guilty to murder to stand. I consider his proper course, once such a probable conclusion was come to, was to have vacated the plea and proceeded to try the issues of fact.
It is clear that the prosecution was contending that the accused went in company, with aggressive intent, to the village where the trouble occurred, behaved aggressively there, and used the axe inexcusably. To my mind it is likely that such a case could have been made out if tried. But in view of his Honour’s apparent conclusion and expressed remarks, I consider it would be unsafe for this Court to deal with the appeal on sentence as one involving a murder. Unfortunately, no cross-appeal against conviction has been brought; and it is not open it seems to this Court, to substitute any lesser conviction or to order a retrial. My view is that the question of the adequacy of sentence must now perforce, in the interests of justice to the individual, be considered on the basis that the crime actually committed was manslaughter.
It is unfortunately an abiding and everywhere present fact in Highland society that a strong deterrent is required against the use of axes in situations of violence. Taking into account all the factors urged on the prisoner’s behalf and noted in his favour by the trial judge, I yet find myself convinced that the sentence actually imposed was quite inadequate for the type of manslaughter (assuming it to be such, as I have stated above I must) which occurred.
I agree with the opinion of my brothers that there should be substituted a sentence of 4 years 9 months’ imprisonment with hard labour.
SALDANHA J: I have had the benefit of reading in draft form the judgments of the Chief Justice and the Deputy Chief Justice. While I am in broad agreement with the views expressed by them I wish to add a few words of my own. The facts have been fully set out by the Chief Justice and there is no need for me to repeat them.
It is impossible to ascertain from the depositions the exact basis for the charge of murder against the respondent. There are two views that one can take of the facts of the case: one, a more serious view, based on the depositions of the councillor and the village peace officer, and the other, one more favourable to the respondent, based on the respondent’s record of interview and the statement he made at the committal proceedings.
The fact that the respondent was indicted on a charge of murder rather than manslaughter would seem to indicate that the State had adopted the more serious view. One would have thought that the reason why the learned trial judge had accepted a plea of guilty to murder was that he too had adopted the more serious view. There is no reason why he should not have done so. The councillor and village peace officer would appear to be persons of responsibility and status in the community. The councillor was a man from the respondent’s own village, and, if biased at all, would be expected to be biased in favour of the respondent. But having recorded and accepted a plea of guilty to murder, rather surprisingly the trial judge adopted the view more favourable to the respondent and proceeded to sentence him as if he were guilty of manslaughter. With respect, this he could not do.
Having regard to the view he had formed as a result of reading the depositions, in fairness to the State, before accepting a plea of guilty to murder the trial judge should at least have informed counsel of the view he had formed of the facts. Had he done so counsel for the State may have accepted a plea of guilty to manslaughter. But probably the best course for the trial judge to have taken was for him to have entered a plea of not guilty and for him to have heard the evidence with a view to resolving the conflict and ascertaining the facts.
If the view of the facts more favourable to the respondent is accepted there is no doubt whatsoever that the respondent could not be guilty of anything more serious than manslaughter. He had not accompanied the hostile Asimango men to Puri village but came upon them quite by chance while looking for beer. He tried his best to stop the fighting — a lawful and praiseworthy activity — and had been provoked by being hit on the head with an axe by the deceased.
But even on the basis of the more serious view of the facts it is doubtful if the respondent could be found guilty of murder. He was not armed. It is true that the suspected Puri philanderer had been roughly handled by the Asimango men, but there is no evidence that any injury had been done to him. In these circumstances there was neither justification nor excuse for the assault with an axe upon the respondent by the deceased and the respondent would be entitled to rely upon the defence of provocation. Thus on either view of the facts the respondent could be guilty only of manslaughter.
There has been no cross-appeal by the respondent, and, therefore, this Court has neither the power to substitute a conviction for manslaughter nor the power to order a retrial.
I agree with the Chief Justice and the Deputy Chief Justice that the only sensible course for this Court to adopt is to consider the question of the adequacy of the sentence as if the offence committed was manslaughter. For reasons stated by them both I agree that the sentence should be increased to 4 years and 9 months’ imprisonment with hard labour.
Appeal allowed; sentence of 4 years and 9 months substituted for sentence imposed by trial judge.
Solicitor for the appellant: K. B. Egan, Public Prosecutor.
Solicitor for the respondent: W. J. Andrew, Acting Public Solicitor.

[cxcix][1971-72] P. & N.G.L.R. 393.