Jerry Wasu v The State (2002) SC697

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sheehan J, Davani J
• Judgment Date: 20 December 2002
• Citation: (2002) SC697
• Court: Supreme Court
• Year: 2002
• Judgement Number: SC697

Full Title: Jerry Wasu v The State (2002) SC697

Supreme Court: Kapi DCJ, Sheehan J, Davani J

Judgment Delivered: 20 December 2002

1 CRIMINAL LAW—Appeal against sentence—Manslaughter—Guilty Plea—First offender—Provocation in the non legal sense.

2 Wanosa v R [1971–72] PNGLR 90, Norris v The State [1979] PNGLR 605, Rex Lialu v The State [1990] PNGLR 487, Acting Public Prosecutor v Nitak Mangilonde Taganis of Tampitanis [1982] PNGLR 299, The State v Wendy Leo (CR 144/01), The State v Eleke Aipanda (CR 405/01), The State v Laimia Leo (CR 657/01), The State v Lawaeye Saegihar (CR 269/02), The State v Hobert Erick (CR 1756/02), The State v Brian Kasira (CR 105/02), The State v Karken Kinden (CR 145/02) and The State v Samuel Penimu (CR 273/02) referred to

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SC697

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCRA No. 1 of 2002

BETWEEN:

JERRY WASU

Appellant

AND:

THE STATE

Respondent

Waigani: Kapi DCJ, Sheehan J, Davani J.

2002: 3rd October, 20th December

CRIMINAL LAW – Appeal against sentence – Manslaughter - Guilty Plea – First offender – Provocation in the non legal sense.

Appellant in person

K. Umpake for the Respondent

20th December 2002

BY THE COURT: This is an appeal by the appellant against sentence for manslaughter where the Court on the 16 November 2001 convicted the appellant and sentenced him to 12 years IHL. This sentence was reduced by 1½ years for time spent in custody awaiting trial. The appellant is presently serving a period of ten years and six months.

At the date of trial, the appellant was aged 28 years. He is from Kandu Wanum in the Angoram District of the East Sepik Province and is married with two children aged 4 and 6.

The appellant pleaded guilty to one count of manslaughter. The evidence is that on the 28th October 1999 in the town of Popondetta, the appellant was confronted by the deceased who was drunk and disorderly. This led to a confrontation between the deceased and the appellant whereupon a Reserve Constable Willie Kageni intervened and separated them. On seeing this, a friend of the appellant then tried to stab the Reserved Constable but was disarmed and chased. The deceased then followed the Constable followed by the appellant. At the Independence Oval, the appellant saw the deceased chasing his friend. The appellant then using a stick he had in his hand, struck the deceased on his head rendering him unconscious. The deceased died on the way to the hospital.

It is settled law that a sentence imposed by a trial judge should not be disturbed unless it is shown to be manifestly excessive. A sentence can be manifestly excessive where a trial judge has acted on the wrong principle, biased, overlooked, under valued, overestimated or misunderstood some salient features of the evidence (see Wanosa and Others v. The Queen PNGLR 90). These principles have been followed by numerous cases in this jurisdiction. The onus is on the appellant to show an identifiable error in principle or on the facts or the error may be inferred from the whole of the circumstances (see Norris v. The State [1979] PNGLR 605 at 613).

The offence of manslaughter carries a maximum penalty of imprisonment for life, subject to of course s 19 of the Criminal Code. Counsel for the State in relying on the principles set out in Rex Lialu v. The State [1990] PNG 487 and which was referred to also by the trial judge, submits that a life has been taken away prematurely and no compensation or expression of remorse will restore the deceased person to life. The appellant in person on the hand simply submits that his sentence is manifestly excessive and therefore this Court should reduce it.

We cannot find any identifiable error in the reasons for sentence. The trial judge had regard to all the relevant matters in sentence including the fact that the appellant was a first offender and the circumstances of the fight which led to the death of the deceased. We do not consider the fact that the deceased was drunk and had an...