Dadly Henry Gorop v The State (2003) SC732

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, Kandakasi, Batari J
• Judgment Date: 03 October 2003
• Citation: (2003) SC732
• Docket Number: SCRA 35 of 2002
• Court: Supreme Court
• Year: 2003
• Judgement Number: SC732

Full Title: SCRA 35 of 2002; Dadly Henry Gorop v The State (2003) SC732

Supreme Court: Kirriwom, Kandakasi, Batari J

Judgment Delivered: 3 October 2003

1 APPEAL—PRACTICE AND PROCEDURE—Appeal against sentence—Supreme Court can not interfere unless a clear case of error is demonstrated—Sentence outside current range of sentences—Identifiable error amounting to an error vitiating the trial judges' exercise of discretion—Appeal upheld and sentence reduced.

2 CRIMINAL LAW –Appeal against sentence—Armed robbery with threats and actual violence with one of two victims almost dying—Prisoner armed with and used an hockey stick to execute the robbery—Offence committed in breach of a de facto trust—Value of items stolen not substantial and not recovered—Guilty plea by first time offender—Sentence above current tariff—Sentence 20 years reduced to 18 years—Criminal Code s386.

3 Wanosa v R [1971–72] PNGLR 90, Norris v The State [1979] PNGLR 605, Ian Napoleon Setep v The State (2001) SC666, Gimble v The State [1988–89] PNGLR 271, Tau Jim Anis v The State (2000) SC642, Public Prosecutor v Don Hale (1998) SC564, Hawai John v The State (Unreported and Unnumbered judgment delivered on 2 April 1998; SCR 9 of 1995), The State v Vincent Malara (2002) N2188, The State v Edward Toude (No 2) (2001) N2299 referred to

Facts

The Appellant was convicted and sentenced to 20 years imprisonment in hard labour on his guilty plea for robbery of a tourist couple with physical violence in breach of a de facto trust. He seriously and severely attacked the couple with an hockey stick, knocking down both of them unconscious. The male victim almost died save for timely medical intervention. He suffered brain damage and his long–term prognosis was not good. His wife suffered serious injuries as well including fracture injuries resulting in residual disabilities. None of the goods stolen were returned or recovered. On appeal, the appellant claimed that the learned trial judge failed to take into account that the police failed to carry out a proper investigation, his guilty plea and that his parents were old.

Held

1. The issue of failure by police to properly investigate the offence was not raised before the learned trial judge. As such, the appellant was precluded from raising the issue as a ground of his appeal for grounds of appeal can only be restricted to matters properly raised before the trial Court.

2. The Supreme Court on appeal can not readily interfere with a trial judge's decision on sentence unless an identifiable error vitiating the exercise of the trial judge's discretion on sentence is demonstrated. Norris v The State [1979] PNGLR 605 and Ian Napoleon Setep v The State (2001) SC666 applied.

3. Although the learned trial judge correctly treated this as a serous case of armed robbery with actual violence and serious aggravating factors, which out weighed the factors in the appellant's mitigation, he however, erred in failing to have any regard to the sentencing trend and or tariff in similar cases. Consequently, the learned trial judge erroneously imposed the sentence of 20 years in hard labour, which was above the current tariffs. The appeal was therefore allowed only on this ground with the sentence reduced to 18 years in hard labour.

___________________________

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 35 of 2002

DADLY HENRY GOROP

-V-

THE STATE

KOKOPO: KIRRIWOM, KANDAKASI, BATARI JJ.

2003: 30th September

3rd October

APPEAL – PRACTICE & PROCEDURE - Appeal against sentence – Supreme Court can not interfere unless a clear case of error is demonstrated – Sentence outside current range of sentences – Identifiable error amounting to an error vitiating the trial judges’ exercise of discretion – Appeal upheld and sentence reduced.

CRIMINAL LAW –Appeal against sentence – Armed robbery with threats and actual violence with one of two victims almost dying – Prisoner armed with and used an hockey stick to execute the robbery – Offence committed in breach of a de facto trust – Value of items stolen not substantial and not recovered - Guilty plea by first time offender – Sentence above current tariff - Sentence 20 years reduced to 18 years – Criminal Code s. 386.

Facts

The Appellant was convicted and sentenced to 20 years imprisonment in hard labour on his guilty plea for robbery of a tourist couple with physical violence in breach of a de facto trust. He seriously and severely attacked the couple with an hockey stick, knocking down both of them unconscious. The male victim almost died save for timely medical intervention. He suffered brain damage and his long-term prognosis was not good. His wife suffered serious injuries as well including fracture injuries resulting in residual disabilities. None of the goods stolen were returned or recovered. On appeal, the appellant claimed that the learned trial judge failed to take into account that the police failed to carry out a proper investigation, his guilty plea and that his parents were old.

Held

1. The issue of failure by police to properly investigate the offence was not raised before the learned trial judge. As such, the appellant was precluded from raising the issue as a ground of his appeal for grounds of appeal can only be restricted to matters properly raised before the trial Court.

2. The Supreme Court on appeal can not readily interfere with a trial judge’s decision on sentence unless an identifiable error vitiating the exercise of the trial judge’s discretion on sentence is demonstrated. Applied Norris v. The State [1979] PNGLR 605 and Ian Setep Napoleon v. The State (SC666).

3. Although the learned trial judge correctly treated this as a serous case of armed robbery with actual violence and serious aggravating factors, which out weighed the factors in the appellant’s mitigation, he however, erred in failing to have any regard to the sentencing trend and or tariff in similar cases. Consequently, the learned trial judge erroneously imposed the sentence of 20 years in hard labour, which was above the current tariffs. The appeal was therefore allowed only on this ground with the sentence reduced to 18 years in hard labour.

Cases cited:

Wanosa & Ors v The Queen [1971 – 72] PNGLR 90.

Norris v The State [1979] PNGLR 605.

Ian Setep Napoleon v The State (Unreported judgment delivered on 18/05/0) SC666.

Gimble v. The State [1988 – 89] PNGLR 27.

Tau Jim Anis & Ors v. The State (Unreported judgement delivered 25/05/00) SC642.

Acting Public Prosecutor v. Don Hale (unreported judgement delivered on (27/08/98) SC564.

Hawai John v. The State (Unreported judgement delivered on 02/04/98) SCR 09 of 1995.

The State v. Vincent Malara (Unreported judgement delivered on 20/02/02) N2188.

In The State v. Edward Toude, & Ors (No 2), (Unreported judgement delivered on 18/10/01) N2299.

Counsel:

Appellant in Person.

Mr. R. Auka for the Respondent.

3rd October, 2003

BY THE COURT: Dadly Henry Gorop, you are appealing against a sentence of 20 years less the time you had already spent in custody awaiting your trial. That was on a guilty plea to armed robbery with violence. The decision on sentence was delivered on 10th April 2002. On the 15th of April...