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Wanu v State [2013] PGSC 20; SC1240 (26 June 2013)

SC1240

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 25 OF 2011

BETWEEN:

ANTON WANU
Applicant

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Respondent

Wewak: Lenalia, Hartshorn, Makail JJ
2013: 25th, 26th June

CRIMINAL LAW - appeal against sentence - conviction for murder – whether trial judge had given sufficient weight to the appellant protecting his home and family

Facts

The appellant was sentenced by the National Court to 16 years imprisonment in hard labour after he was found guilty and convicted for the crime of murder. This is the decision on the appellant's appeal against his sentence.

Held:

1. The trial judge erred by according greater weight to the excess of violence used by the appellant upon the deceased compared to other factors that he considered.

2. It can be inferred that some error must have occurred in His Honour's exercise of the sentencing discretion as the sentence that the trial judge imposed is out of reasonable proportion to the circumstances of the crime.

3. The appeal against sentence is upheld, the sentence of 16 years is quashed and replaced with a term of imprisonment of 13 years in hard labour.

Cases cited:

Gimble v The State [1988-89] PNGLR 271
State v. Kenneth Baupo and Anor (1989) N795
State v. Mek Keroa Nentepa (1990) N878
State v. John Pesa [1994] PNGLR 317
State v. Jimmy Yasasa Lep (1996) N1495
State v. Francis J. Tai (1997) N1756
Manu Kovi v. The State (2005) SC789
Steven Loke Ume v. The State (2006) SC836
Alois Erebebe and Anor v. The State (2013) SC1228

Counsel:

Mr. E. O. Thomas, for the Appellant
Mr. A. Kupmain, for the Respondent

26th June, 2013

1. BY THE COURT: The appellant appeals against a sentence of 16 years imprisonment in hard labour. The sentence was imposed upon him after he was found guilty of murder.

Facts

2. The crime was committed on 7th May 2005 at Makopin village in Wewak, East Sepik Province during the hours of 6.00 and 7.00pm. The deceased and friends were drinking beer near the vicinity of the appellant's house when a fight broke out between them. The deceased ran and hid in the appellant's kitchen house. The appellant was with his family in his house and when he heard the commotion outside he came down and used a cane stick to disburse the drunken group that had trespassed into his premises. In the course of so doing he struck the deceased three times on the head with the cane stick that he was holding. The trial judge accepted the respondent's evidence that the appellant struck the deceased three times on his head with a cane and that the impact of those blows was sufficient to cause the deceased's skull to fracture thereby causing the deceased's death.

3. The appellant submits in essence that the trial judge in determining the sentence to be imposed, erred in:

a) not giving sufficient weight to the fact that the appellant was defending his home and family when he assaulted the deceased after the deceased had entered the appellant's property,

b) giving too much weight to the violence inflicted upon the deceased by the appellant,

c) not giving sufficient weight to the appellant's personal and family circumstances.

4. Counsel for the respondent submits that the trial judge took into consideration all the factors for and against the appellant. Further, the sentence of 16 years that was imposed reflected what both counsel had submitted was appropriate, was not excessive and was in accordance with the guidelines detailed in Manu Kovi v. The State (2005) SC789.

5. As to an appeal against sentence by a convicted person, the principles are well settled. In Steven Loke Ume v. The State (2006) SC836, the five members of the Supreme Court said:

"An appellant must show an error in the exercise of the sentencing discretion. The error may be identifiable or although no error is identifiable, the "sentence is out of reasonable proportion to the circumstances of the crime .....(that) this Court will infer that some error must have occurred in the exercise of sentencing discretion": William Norris v. The State [1979] PNGLR 605."

This passage was recently referred to with approval in the case of Alois Erebebe and Anor v. The State (2013) SC1228. We respectfully agree with it.

6. On the facts, this particular murder falls within the second category of those detailed in Manu Kovi (supra). This was submitted by both counsel and was agreed to by the trial judge. The sentencing range for this category is between 16 and 20 years. Given that the sentence imposed here is 16 years, prima facie it appears to be appropriate and imposed without error.

7. When the reasons of the trial judge for imposing the sentence are considered however, it is apparent that his consideration of the appellant protecting his home and his family is by way of acknowledgement only. The trial judge states that the appellant had every right to chase the deceased from his premises but that his response was excessive in doing so. Whilst we agree that the force used by the appellant was excessive, the trial judge does not appear to have considered that the appellant was protecting his home and family.

8. In the Supreme Court case of Gimble v. The State [1988-89] PNGLR 271, the Court said:

"One of the basic rights enshrined in the Constitution is the protection of the privacy of the home. A man's home, whether it is a mansion or a shack is his castle and we think the punishment for robbery of a home should reflect those community values."

9. This passage has been referred to with approval in numerous cases including: State v. Kenneth Baupo and Anor (1989) N795; State v. Mek Keroa Nentepa (1990) N878; State v. John Pesa [1994] PNGLR 317; State v. Jimmy Yasasa Lep (1996) N1495 and State v. Francis J. Tai (1997) N1756. Notwithstanding that the above cases referred to this passage favourably in the context of the punishment for robbery of a home and not murder committed while protecting a home, in our view this passage is equally relevant when considering the action employed by a person in protecting his home and family. It is to be understood that these comments of this Court should not be taken as in any way condoning unlawful behaviour especially when violence is used. That said, courts should have some understanding for a person who finds himself in such an unenviable and unfortunate position.

10. Given the above and that the trial judge in our view has accorded greater weight to the excess of violence used by the appellant upon the deceased compared to other factors that he considered, in our respectful view, the trial judge erred. If the trial judge did not err, then we infer that some error must have occurred in His Honour's exercise of the sentencing discretion as we are of the view that the sentence that the trial judge imposed is out of reasonable proportion to the circumstances of the crime.

11. A more appropriate sentence that should have been imposed in the circumstances in our view is a term of imprisonment of 13 years and that is the sentence that we will impose. Given this finding it is not necessary to consider the other submissions of counsel.

Orders

12. The formal Orders of the Court are:

a) the appeal of the appellant against sentence is upheld,

b) the sentence imposed upon the appellant by Mogish J. on 13th July 2011 at Wewak is quashed and is replaced with a term of imprisonment of 13 years in hard labour.

_________________________________________________
Office of the Public Solicitor: Lawyers for the Appellant
Office of the Public Prosecutor: Lawyers for the Respondent