SC2802
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV 38 OF 2022

GIDEON WALLY
Appellant

V

THE STATE
Respondent

WEWAK: AUKA J, NUMAPO J, PURDON-SULLY J
27, 30 OCTOBER 2025

CRIMINAL LAW & PROCEDURE– Guilty plea – appeal against sentence of 15 years – sentence manifestly excessive and out of reasonable proportion to the circumstances of the crime - mitigating factors and extenuating circumstances renders the aggravating factors insignificant – Factual circumstances of the case places it under category 1 of Manu Kovi – sentence is quashed – sentence of 12 years substituted – Section 23 (4) of the Supreme Court Act.

Case cited
William Norris v The State [1979] PNGLR 605 
Goli Golu v The State [1979] PNGLR 653
 Avia Aihi v The State [1982] PNGLR 44
 Ure Hane v The State [1984] PNGLR 105
Simbe v The State [1994] PNGLR 38 
Ume v The State [2006] PGSC 9; SC836 
John Elipa Kalabus v The State [1988] PNGLR 193
Manu Kovi v The State [2005] PGSC 34; SC789

Counsel
Mr F. Kirriwom for the appellant
Ms L. Jack for the respondent

1.	BY THE COURT: This is an appeal against sentence. The appellant pleaded guilty to one count of Manslaughter under Section 302 of the Criminal Code and was convicted. He was sentenced to 15 years by the National Court on the 15th of June 2022. 

2.	Appellant filed this review against his sentence pursuant to Section 22 (d) of the Supreme Court Act. The Supreme Court presided over by a single judge granted the appellant leave to appeal against his sentence

B. BACKGROUND
4. Appellant was indicted on one count of manslaughter pursuant to section 302 of the Criminal Code. He was charged along with his other co-accuseds who were indicted on a lesser charge of assault occasioning bodily harm under section 340 (1) of the Criminal Code.  

5.    The appellant pleaded guilty to one count of manslaughter and was convicted by the National Court. He was sentenced to 15 years imprisonment less the pre-trial custody period of one (1) year, three (3) months and two (2) weeks. The balance remaining term to be served was thirteen (13) years, eight (8) months and two (2) weeks. The appellant appeals his sentence. 

6.    The brief facts were that; the appellant had retaliated against the deceased who had fought with him earlier on. The deceased sat on top of him and had punched him. The appellant’s family was not happy with what the deceased did on the appellant and demanded a compensation of K5000 cash and two live pigs. 

7.  Two days after the incident the appellant and members of his family approached the deceased at her house where the appellant hit her. A fight broke out. Appellant and his sisters then attacked the deceased. The appellant kicked the deceased on her chest. This caused her severe internal injuries which eventually led to her demise. The appellant was the principal assailant in this fight that tragically ended the life of the deceased. 

B. GROUNDS OF REVIEW
8.    The appellant sets out five (5) grounds of appeal in the Notice of Appeal. However, during the course of the hearing ground 2 was abandoned leaving only four (4) grounds of appeal remaining as follows:

(i)   The sentencing judge erred in law by sentencing the appellant to 15 years in light of strong evidence of a de-facto provocation.
 (ii) The sentencing judge erred in law by not considering the mitigating factors such as the early guilty plea, cooperated well with the police, a first time offender, expression of remorse and compensation to the victim’s family in the sum of K25, 000.00.
(iii) The sentencing judge erred in law in his findings that the appellants and his relatives planned to kill the deceased.
(iv) The sentencing judge erred in law in finding that the appellant’s case fell into category two of Manu Kovi sentencing tariffs.

C. LAW ON APPEAL AGAINST SENTENCE

9.   The principles concerning appeals against sentence are settled in this jurisdiction. In William Norris v The State [1979] PNGLR 605, he Supreme Court held that the onus is on the appellant to demonstrate an identifiable error on the part of the trial judge. “….that the sentence imposed by the trial judge should not be disturbed unless the appellant can show that an error had occurred which has the effect of vitiating the trial judge’s discretion on sentencing.”

10   Counsel for the appellant conceded that there is no identifiable error. What is contended is that the sentence is manifestly excessive and out of reasonable proposition to the circumstances of the crime.  The imposition of 15 years in the circumstances, is excessive.

11.   The prescribed maximum penalty for manslaughter is, subject to section 19, imprisonment for life. However, maximum penalty is reserved for the worst type offending; Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State [1982] PNGLR 44 and Ure Hane v The State [1984] PNGLR 105. 

C. SUBMISSION 	

12. On the first ground of appeal the appellant submitted that that the trial judge misapprehended the concept of de-facto provocation as an extenuating factor and erred in dismissing or disregarding the existence of it as a relevant consideration for sentencing. 

13.     The observation made by the trial judge on de facto provocation is reflected in the Review Book (p. 43) dismissing de facto provocation as a consideration in favour of the appellant. His Honour was of the view that de facto provocation was not applicable as the vulgar words used towards the appellant was made two days ago before the fight took place.  For this reason, the trial judge found that there was no de facto provocation. 

14.	This is what the sentencing judge said on de-facto provocation. His Honour said and we quote; “…on the date of the offence the deceased never uttered any vulgar or swear words to the prisoner (appellant) nor did she act in a way to call his repute as male member of the Yangoru society into question. For all it is worth, he was the instigator of this assault leading to the death of the deceased, He did not have the common courtesy and respect for the local magistrate to hear out and settle the matter. He cannot sing de-facto provocation where it is non-existence here. He cannot rely on a matter that is two days old to say they constitute provocation in a non-legal sense. This is a continuation from the argument they had two ago and he went there to take revenge.”

15.	With respect to the ground 2, the appellant submitted that the sentencing judge has not taken into consideration the mitigating factors particularly, the appellant’s early guilty plea, he is a first time offender with no prior conviction and his expression of genuine remorse. The payment of K25, 000 as compensation to the family of the deceased is a further mitigating factor in favour of the prisoner. And the presence of de facto provocation as a special mitigating factor. Furthermore, the appellant’s house was completely burnt down and his properties destroyed by the relatives of the deceased in retaliation. Thirteen other properties were also destroyed. There is a long list of mitigating factors and all these considerations would have rendered the aggravating factors insignificant.

16.	The third ground relates to pleadings but it is not clear. Appellant contended that the judge has considered other factors that do not constitute the elements of the offence that are deemed as extraneous matters which could potentially have the effect of vitiating the exercise of a discretion on sentencing. Appellant however, had not shown what these irrelevant or unrelated matters were that the trial judge has taken into consideration that have impaired the exercise of his sentencing discretion. This ground is ambiguous and unclear.

17.	The final ground of appeal relates to the appropriateness of sentencing within the Manu Kovi guidelines or tariff on sentencing. Appellant contended that the trial judge misdirected himself in considering the circumstances of this offending when no offensive or dangerous weapon was used to carry out the attack and the attack was not vicious and there was no pre planning involved. The sentencing judge ruled that the case fell under category 2 of Manu Kovi when the above considerations were not present. Consequently, a sentence of 15 years was imposed. 

D. DETERMINATION
18.	With respect to ground 1, the appellant submitted that the trial Judge erred in that he failed to give sufficient consideration to the de facto provocation for the use of the vulgar words towards the appellant two days earlier by the deceased and, further, that the sentence imposed was outside the range of sentences imposed for manslaughter under the Criminal Code s 302 where de facto provocation is present and, thus, was out of all proportion to the gravity of the offence. The maximum sentence for manslaughter is life imprisonment however, subject to section 19, the Court would impose a term of years in place of the maximum sentence prescribed by law.

19.	The trial Judge refused to consider de facto provocation as in his opinion the de facto provocation was two days old. His Honour said, at page 43 of the Review Book the following; "...And in my view, there is no de facto provocation because of the date of this offence, 3 January 2021, the deceased never uttered any vulgar or swear words to the prisoner nor did she act in a way to call his repute as a male member of the Yangoru society into question”. His Honour went onto say that “It is a carry on revenge for the assault that he suffered at the hands of the deceased [sic], a woman, who assaulted him two days earlier on 1 January 2021. He simply was prepared to take revenge against her for what she did to him sitting on him and punching him. There is pre-existing brewing fume between him and her which he instigated leading to her death.”  So, it became clear to us that the trial Judge did give consideration to the circumstances that led up to the offence which is that it is a revenge for what the deceased did to the appellant two days ago but for some reasons he had not taken them into considerations when sentencing.

20.	We are satisfied that the sentencing judge has heard the argument on de facto provocation but did not consider it as a relevant consideration to reduce the sentence.  He has not considered de facto provocation as a strong extenuating circumstances as according to him the use of the vulgar words towards the appellant was made two days prior to the date the assault occurred. The appellant could not rely on it. Two days have passed to warrant the argument of de facto provocation. Consequently, the trial judge concluded that there was no de facto provocation. Other than that, his Honour has not given any reasons on why he could not accept the defence argument on de facto provocation. 

21.	The concept of extenuating circumstances is not new. These are factors for considerations that reduces the seriousness of a crime. De facto provocation is one of the factors of extenuating circumstances and if properly argued it could reduce sentence; Simbe v The State [1994] PGSC 18; PNGLR 38. Numerous case laws have made clear that the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must balance these factors and determine a punishment which fits the particular crime; Ume v The State [2006] PGSC 9; SC836. The Supreme Court has not placed any time limitations on these extenuating circumstances that are relevant to the commission of the offence nor does it places any conditions on when it might and might not be accepted. 

22.	We find that the sentencing judge erred in not taking into consideration de facto provocation as an extenuating circumstances relevant to the commission of the offence. It is immaterial whether extenuating circumstances occurred two days prior or on the same day of the offence so long as it is related and relevant to the commission of the offence. In our view, had the trial judge taken de facto provocation into consideration, it would have resulted in lesser sentence than what was imposed. There is merit in the arguments raised by the appellant on de facto provocation. Accordingly, we uphold this ground of review.
 
23.	On ground 2 of the review on mitigating factors, the sentencing judge in his judgment at page 103 of the Review Book said that he has taken into account the mitigating factors but had not specified what factors he had considered as mitigating factors in his decision on sentence. There are many mitigating factors and while some might be relevant, some are not. In a normal practice, mitigating factors that are taken into account are usually listed in the court records. In this case, there is nothing. It is therefore, doubtful, if the sentencing judge has ever considered the mitigating factors at all.

24.	Generally, all relevant mitigating and aggravating factors are taken into account in determining the appropriate sentence but as to what weight is given to those factors is in the discretion of the court. In relation to mitigating factors, the cases distinguish between ordinary or common mitigating factors and special mitigating factors. Ordinary mitigating factors include the accused’s prior good character, stable good family background, education and religious background, first time offender, guilty plea, remorse and co-operation with the police. Special mitigating factors include the offender’s very young or very old age, poor health and payment of customary compensation. The first two (2) pose no difficulty as they have been recognized in numerous cases before the courts. The third one needs amplifying; Manu Kovi v The State [2005] PGSC 34; SC789. 

25.	Compensation is a relevant mitigating factor. Whilst the Courts acknowledge that compensation should not be used to pay for crime and that no amount of remorse or compensation will restore loss of life, it is an important mitigating factor. The amount or value of compensation will vary depending on the special circumstances and values of each traditional society. The weight to be given to compensation by the Court will also vary depending on different factors involved such as the existence of custom on compensation for death wrongfully caused, request or demand for compensation made by the deceased’s relatives and response given by the deceased’s relatives, the amount or value offered and accepted.

26.	In this case a sum of K25, 000 was as paid as compensation to the family and relatives of the deceased. This was submitted as a mitigating factor during the sentencing hearing but the trial Judge refused to accept the compensation as a mitigating factor and referred to it as a token of ‘peace and reconciliation’ that does not reduce the sentence. 
 
27.	With greatest of respect to the trial Judge, his view that compensation is not a mitigating factor, goes against the long-held view of the Courts that compensation is a relevant mitigating factor. Principles of law developed overtime in this jurisdiction have recognized compensation as both relevant and sufficient mitigating factor. In the PNG Melanesian society, compensation plays an important role in bringing about lasting peace and harmony. 

28.	Mitigating factors and extenuating circumstances have the same desired effect of reducing the punishment but operate distinctly from each other. In serious offences such as murder, the gravity of the offence is determined in the light of relevant aggravating factors and may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant;; John Elipa Kalabus v The State [1988] PNGLR 193.

29.	 In consideration of this principle of law, we consider that there is merit in the arguments raised by the appellant in relation to the failure of the trial judge to take into account the mitigating factors in sentencing. Accordingly, we uphold this ground of review.

30.	With respect to ground 3, the appellant submitted that a person who plead guilty to an offence, pleads only to the basic elements to the offence for which he is charged. Thus, any consideration of factors other than those which constitute the essential elements of this offence ought to be deemed extraneous matters which potentially have the effect of vitiating sentence.

31.	The appellant was charged with his other co-accuseds who pleaded guilty to a lesser charge of assault occasioning bodily harm pursuant to section 340 (1) of the Criminal Code. The appellant pleaded guilty to manslaughter and was convicted.

32.	The appellant has not shown or described what those extraneous matters are that might impair the decision on sentencing. We find this ground ambiguous and unclear. Accordingly, we dismissed this ground.  

33.	As regards to ground 4 of the review, the appellant submitted that the sentencing judge erred in finding that the appellant’s case fell under category two of the sentencing tariffs of Manu Kovi. 

34.	Appellant contended that category two of manslaughter cases in  Manu Kovi suggested a sentence ranging from 13 – 16 years if the following considerations are present:

(i)	Use of dangerous or offensive weapon such a knife or axe on the vulnerable part of the body,
(ii)	The attack was vicious in nature
(iii)	Multiple injuries caused
(iv)	Some deliberate intention to cause harm, and
(v)	Some pre-planning involved.

35.	In the present case, the circumstances of the offending does not present these considerations.  The sentencing judge focused more on the injuries suffered by the victim than the factual circumstances of the case itself.

36.	Appellant submitted that the circumstances of his case falls under category 1 of Manu Kovi because the following considerations were present;

(i)	No weapons was used in the attack
(ii)	No pre-planning
(iii)	Minimum force used, and
(iv)	Absence of a strong intent to do GBH. 

37.	The sentencing range under category 1 of Manu Kovi is 8 – 12 years if the above considerations are present.

38.	The facts of the case stated in pages 96 and 97 of the Review Book shows that the appellant had kicked the deceased hard on her chest as she was lying on the ground after she was assaulted by his other co-accuseds. After the deceased was kicked she got up and tried to go to the police station to get assistance but was met by another co-accused Kanawi Wally who punched her hard on the chest causing her to become weak and she had to sit down. She was later punched by Stephanie Wally on the face. She then grabbed her by her throat and strangled her until she was struggling to breath. There was no weapons used in the attack. There was no pre-planning involved. 

39.	The kick delivered by the appellant could not have been the fatal blow that caused her death for the reason that the deceased got up after she was kicked and wanted to go to the police station to get help when she was assaulted by the other co-accuseds. From these facts, it is safe to conclude therefore, that the force applied by the appellant when he kicked her was only minimal. Clearly, there is absence of a strong intention to do GBH. 

40.	The sentencing judge made the following observations at page 101 of the Review Book. His Honour said: “…although there was no weapons used, the assault was likened to an offensive weapon being used. This is because of the location of the injury and nature of the injury suffered and force inflicted upon the deceased. That she was a healthy person not suffering to any underlying conditions such as that of a raptured spleen, in spleen cases. This was caused by or accelerated upon the kick to a chest by the appellant.”

41.	His Honour went on to say; “And the attack repeatedly and compounded in that there were also four others who were involved leading to her demise. In my view it is likened to using an offensive weapon to part of the body that is well protected. Here the lungs in the rib cage protected. The force was extra ordinary through the protection to cause the injury.”

42.	With respect, the injuries caused by dangerous or offensive weapon is recognizably different to the injuries caused by kicking, pushing or punching. In our respectful view, it is wrong for the trial Judge to equate the injuries suffered from kicking to that of the injuries caused by a use of an offensive weapon such as a knife.. This is why Manu Kovi has set a different sentencing guidelines for different circumstances of offending and considerations of these circumstances in sentencing.

43.	We agree with the appellant that the sentencing judge got carried away with the nature and extend of the injuries suffered by the deceased and has not properly considered and weigh out the mitigating factors and extenuating circumstances before reaching his conclusion. Consequently, this has affected his reasoning on sentence.

44.	After having considered the factual circumstances of the case and the respective submissions from both the appellant and the respondent, it became clear to us that the trial judge has misdirected himself in considering the circumstances of the offending when he likened the assault to an assault similar to the use of a dangerous or offensive weapon when there is no medical evidence to back this finding.

45.	Considering the principles of law established in Manu Kovi (supra) on sentencing tariffs, we find merit in the arguments advanced by the appellant on this ground with respect to the appropriateness of sentence.  We are of the view that the appellant’s case falls within category 1 of Manu Kovi.  Accordingly, the sentence of 15 years imposed by the National Court is quashed.

E. ORDER

46.     We make the following orders:

(i)	Appeal against sentence is allowed.
(ii)	The sentence of 15 years is quashed and substituted by 12 years imprisonment. 
(iii)	The warrant of commitment issued by the National Court shall be revoked and substituted by a fresh warrant of commitment reflecting the new sentence. 
_______________________________________________________________
Lawyer for the appellant:	Public Solicitor
Lawyer for the respondent: Public Prosecutor