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Aen and Nicholas v The State [1999] PGSC 17; SC612 (28 May 1999)

Unreported Supreme Court Decisions

SC612

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA NO. 59 OF 1995
BETWEEN: NICHOLAS AEN AND STEVEN NICHOLAS
-APPELLANTS-
AND: THE STATE
-RESPONDENT-

Waigani

Kapi DCJ Jalina Sawong JJ
25 May 1999
28 May 1999

MURDER – Trial – Criminal Law – Sentence – 17 years imprisonment appropriate.

Counsel

B. Takin, for the Appellants

C. Sambua, for the Respondent

28 May 1999

KAPI DCJ JALINA SAWONG JJ: The appellants were convicted for the crime of murder and sentenced to 17 years imprisonment. They then appealed against their conviction and sentence. Their appeals against convictions were heard and dismissed. Originally their appeals against the severity of sentence were dismissed as being incompetent. However in the light of the decision in Jim Kas & Ors v The State (SCRA 89 of 1998), we restored the appellants appeal against sentence. This decision is in relation to that ground only.

Mr Takin, counsel for the appellants submitted that the trial judge made three identifiable errors which led him to impose an excessive sentence. As we understood his submission Mr Takin submitted that the trial judge fell into error in taking into account and giving weight to the deceased’s status and standing in the community, his educational background and so forth. Mr Takin submitted that the trial judge placed too much weight on these matters. The next matter raised by Mr Takin was that the trial judge ought to have deducted some time from the head sentence, because the appellants had lost their properties as the relatives of the deceased damaged these properties as a result of the death of the deceased. He submitted that this ought to have been taken into consideration and the sentence reduced accordingly.

Finally Mr Takin submitted that the trial judge either did not take into consideration or gave little consideration to the fact that the appellants had murdered a close relative. He submitted that in doing so the trial judge fell into an error.

Mr Takin submitted that because of these errors the trial judge fell into error in imposing a sentence which was manifestly excessive. He submitted that a sentence of 12 years imprisonment would be appropriate.

Mr Sambua submitted that all these matters raised by Mr Takin were raised before the trial judge who took all of these matters into consideration and imposed the sentence. Mr Sambua submitted that all relevant matters were considered by the trial judge. He submitted that the trial judge made no identification error. He further submitted that the sentence of 17 years was appropriate in all the circumstances of the case.

We have considered the submissions put to us. We have also read the trial judge’s decision on sentence. We are of the view that the trial judge did not make any identifiable errors in his decision on sentence. All the matters raised by Mr Takin were raised before the trial judge and he considered and took all of them into consideration before arriving at the final sentence.

Even though we find that the trial judge made no identifiable error(s), nevertheless is the sentence of 17 years manifestly excessive or out of all reasonable proportions to the circumstances of the crime.

The Supreme Court in Lawrence Simbe v The State [1994] PNGLR 38 confirmed a sentence of 14 years imprisonment. In that case the appellant pleaded guilty to a charge of murder. The facts of that case were that 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 immediate death.

In the present case, this was a trial. The two appellants attacked the deceased who was unarmed. The attack took place at the deceased’s house, that is the appellants entered the deceased’s residence, argued and assaulted his wife and subsequently assaulted him with a dangerous weapon causing him injury which led to his death. The attack was repeated on a unarmed and innocent man.

In all the circumstances, bearing in mind that the maximum sentence for this crime is life imprisonment, we find no error by the trial judge and his reasons for sentence. We find that the sentence is one that he was entitled to give for this murder.

We dismiss the appeal against sentence and confirm the sentence imposed by the National Court.

Lawyer for the Appellants: B.T. Gobu & Associates

Lawyer for the Respondent: Public Prosecutor