SC2063

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 19 OF 2019

BETWEEN:
KEVIN HENRY
Appellant

AND:
THE STATE
Respondent

Kokopo: Hartshorn J, Makail J and Kassman J
2020: 26th & 27th October

  SUPREME COURT APPEAL – criminal appeal - appeal against sentence

Cases Cited:

Norris v. The State [1979] PNGLR 605 
Manu Kovi v. The State (2005) SC789 
State v. Augustine Tup (2006) N4489
State v. John Buku Kailomo (2007) N5023
State v. Paul Semelkit (2008) N3438

Counsel:

Mr. L. Mamu, for the Appellant
Mr. P. Kaluwin, for the Respondent 

Oral decision delivered on
27th October 2020

1. BY THE COURT: This is a decision on a contested appeal against sentence. It was an appeal also against conviction. The appeal against conviction was abandoned by the appellant at the hearing before us. 

2.  The appellant was found guilty of the murder of the deceased, his wife and was sentenced to 27 years imprisonment. After time spent in custody of two years, 10 months and five days being deducted, the appellant was sentenced to serve 24 years, one month and 25 days imprisonment.

Background

3.  The deceased died after the appellant had kicked her in her abdomen.  This resulted in the deceased’s enlarged spleen rupturing, causing her death moments later.

Appellant submissions

4.  The appellant submits that the primary judge fell into error by rejecting evidence that there had been de facto provocation of the appellant by the deceased before the assault and in the primary judge’s determination of the length of sentence.  The primary judge added onto an initial sentence of 20 years imprisonment, a period of five years as a deterrent against other would-be offenders and a period of two years for aggravating factors. Further, it is submitted that the primary judge should have considered a period of suspension of sentence and also that some of the appellant’s belongings had been taken by his wife’s family.

State submissions

5.  The State, significantly, submitted that the sentence imposed appears to be out of reasonable proportion to the circumstances of the crime. The sentence is more than the sentences imposed in the decisions to which the primary judge referred and there is no scientific or mathematical method used by the primary judge in calculating the sentence. The State submitted that the sentence of 27 years appears to be manifestly excessive in the particular circumstances. 

Consideration 

6.  The principal factors to be considered in an appeal against sentence are well settled and worth repeating. In Norris v. The State [1979] PNGLR 605, Justice Kearney said at 612-613:

“So the question in practice on a sentence appeal is usually this — has the appellant shown that an error occurred which has the effect of vitiating the trial judge's discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.”

7.  The appellant submits that the primary judge fell into error in not taking into account that there was de facto provocation, particularly as the State had not produced evidence to rebut that the appellant’s wife had sworn at the appellant in the presence of his parents before the assault.

8.  In his decision on verdict the primary judge had considered whether the deceased had sworn at the appellant and his family. The primary judge did not find that the deceased had sworn as alleged. He found the evidence of the appellant and of his father to be bad and unreliable.  We are satisfied that the primary judge was entitled to reject the mitigation submission of de facto provocation in these circumstances. Even if there had been de facto provocation, to our minds, it does not in any way justify or supply a reason for the assault by the appellant upon the deceased. This submission is rejected.

Length of sentence

9.  The primary judge referred to three decisions which were cited by the prosecution and defence as comparable.  These are the State v. John Buku Kailomo (2007) N5023, State v. Paul Semelkit (2008) N3438 and State v. Augustine Tup (2006) N4489.  These cases all concerned victims dying because of ruptured spleens. Semelkit’s case (supra) was a conviction after trial. The other two were guilty pleas.

10. Semelkit’s case (supra) was a similar fact situation to this case. The primary judge, Justice Cannings, considered that the facts of the case put it within category two of the sentencing guidelines of the Supreme Court judgment of Manu Kovi v. The State (2005) SC789, being 16 – 20 years. This was notwithstanding that the facts did not fit neatly into category two as:

“the nature of the injuries suffered by the deceased revealed a vicious assault and a strong intention to do grievous bodily harm. Nor did it seem to fit into category 3 as it was not preplanned and no weapons were used.”

11.  Justice Cannings, after considering the aggravating and mitigating factors set what he described as the head sentence of 22 years imprisonment.  He did this by adding two years to the maximum guideline for a category two murder in the Manu Kovi (supra) guidelines. Justice Cannings before determining the head sentence stated:

“Though the State is pressing for a sentence of only 17 years, this was a serious category 2 case. The community is alarmed and horrified by this sort of domestic killing and the sentence must reflect those concerns. Mr Gene submitted that this was a ‘domestic incident’, which is correct, but it is not correct to regard that as a mitigating factor. It is something that makes the case more serious. A family home should be a place of peace, of love and caring – a safe haven for every person living within it – and not a scene of assaults and violence. The fact that the offender murdered the woman who he took into his home as his partner makes this case so serious that a sentence above the starting point range is warranted.”

12. That statement, in our view, is particularly appropriate in this instance. Given the primary judge’s reliance in this instance on Semelkit’s case (supra) and the sentence imposed therein, we are satisfied that the primary judge did not fall into error in starting with a sentence of 20 years and then adding a further two years for aggravating factors.  The nature of the injuries suffered by the deceased were horrific.

13. As to the further period of five years imprisonment that was added as a deterrent,  the primary judge did not rely upon any case authority in which a similar deterrent period of imprisonment had been imposed.  We are not aware of any such cases and none were able to be brought to the attention of the Court by counsel.  Whilst we agree with the primary judge’s comments concerning higher and stiffer penalties being warranted, the appellant is entitled to be sentenced in accordance with the principles and sentencing trends that had been followed to the time of his sentencing.  To the extent that this did not occur in the appellant’s case, we are of the respectful view that the primary judge fell into error.

14. Given the pain and injury suffered by the deceased before she died, the aggravating and mitigating factors and having regard to the comparable cases, the appropriate sentence that should have been imposed in our view, is 23 years. As to the other submissions, given the gravity of the crime and the increase in sentences imposed since Manu Kovi (supra) and Semelkit’s case (supra), the primary judge did not fall into error in failing to suspend any of the sentence or to take into account the alleged removal of the appellant’s goods by the deceased’s family.

Orders

15.   It is ordered that:

a)	The conviction of the appellant is confirmed;

b)	The sentence of 27 years imprisonment with hard labour is quashed and replaced with a sentence of 23 years imprisonment with hard labour with the time spent in custody to be deducted from the sentence.
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Office of the Public Solicitor: Lawyers for the Appellant                                   
Office of the Public Prosecutor: Lawyers for the Respondent