Joseph Enn v The State (2004) SC738

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Kandakasi J, Lenalia J
• Judgment Date: 01 April 2004
• Citation: (2004) SC738
• Docket Number: SCRA 3 of 2003
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC738

Full Title: SCRA 3 of 2003; Joseph Enn v The State (2004) SC738

Supreme Court: Sevua J, Kandakasi J, Lenalia J

Judgment Delivered: 1 April 2004

1 Criminal Law—Appeal against sentence—Severity of—Murder—Charge of—Use of bush knife—Attack from back of deceased—Deceased's head totally severed—Instant death resulting from attack—Sentencing tariff—Sentence of 20 years—Criminal Code (Ch262) s300(1).

2 Criminal Law—Appeal against sentence—Powers of Supreme Court on Appeal—Warning on cases of serious nature—Where more severe sentence warranted—Appeal dismissed—Supreme Court Act (Ch37), s23(4)

3 Avia Aihi v The State (No 3) [1982] PNGLR 92, Norris v The State [1979] PNGLR 605, Goli Golu v The State [1979] PNGLR 653, Aloises Peter Irobo Kovei v The State (2001) SC676, Joe Foe Leslie Leslie v The State (1998) SC560, The State v Joseph Ulakua (2002) N2240, Max Java v The State (2002) SC701, Lawrence Simbe v The State [1994] PNGLR 38 referred to

___________________________

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCRA 3 OF 2003

BETWEEN:

JOSEPH ENN

Appellant

AND:

THE STATE

Respondent

Mt. Hagen: Sevua, Kandakasi, Lenalia JJ

2004: 29th March & 1st April

Criminal Law – Appeal against sentence – Severity of – Murder – Charge of – Use of bush knife – Attack from back of deceased – Deceased’s head totally severed – Instant death resulting from attack – Sentencing tariff – Sentence of 20 years – Criminal Code s. 300 (1), Ch. No. 262.

Criminal Law – Appeal against sentence – Powers of Supreme Court on Appeal – Warning on cases of serious nature – Where more severe sentence warranted – Appeal dismissed – Supreme Court Act, s. 23 (4), Ch. No. 37.

Cases cited:

The following cases are cited.

Avia Aihi v. The State; (No. 2) [1982] PNGLR. 92.

William Norris v. The State, [1979] PNGLR 605

Goli Golu v. The State; [1979] PNGLR 653

Ure Hane v. The State; [1984] PNGLR 105

John Elipa Kalabus v. The State; [1988] PNGLR 193

Aloises Peter Irobo Kovei v. The State; SC 676, unreported, 14th. November 2001

Joe Foe Leslie Leslie v. The State; SC 560, 7th August 1998

The State v. Joseph Ulakua; N.2240, unreported, 23rd May 2002

Max Java v. The State; SC 701, unreported, 20th December 2002

Lawrence Simbe v. The State; [1994] PNGLR 38

Counsels:

Appellant in person.

J. Kesan for Respondent.

1st April, 2004

BY THE COURT: This is an appeal by the appellant against a sentence of 20 years imprisonment imposed on him by the National Court in Kundiawa on 14th November 2002, on a charge of murder of one Mathew Wamina, the deceased, in the course of pursuing an unlawful purpose contrary to s.300 (1) (b) (i) of the Criminal Code.

We heard this appeal on Monday, 29th of March and reserved our decision to today. This is a unanimous decision of this Court.

Before the trial judge were the following facts. On the morning of 17th June 2000, the appellant left his village for Togel village to attend a reconciliation meeting with the aim to resolve an outstanding dispute. In the course of that meeting, the victim, Mathew Wamina and Margaret Daka had an argument and they then fought. Thomas Gend, one of their clansmen stopped the two from fighting. After they were stopped, the deceased walked back to where he was, to sit down. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body.

The medical report made on the deceased on 30th May that same year showed that the deceased sustained a severed neck from a sharp object applied with great force.

Upon arraignment the appellant pleaded guilty and was sentenced to 20 years imprisonment. He now appeals against the sentence of 20 years imposed on him. There are two grounds of appeal. On the first ground, the appellant says that the sentence imposed on him by the trial judge is excessive. The second ground of appeal is that the trial Court did not consider the appellant’s age.

Before we proceed with the appeal, we propose to deal with the grounds of appeal in the reverse order. As to the question of whether or not the trial judge gave consideration to the appellant’s age, we say yes, His Honour did consider the appellant’s age. We note from page 23, lines 41 to 42, and page 25, lines 14, 15 and 16 of the appeal book that the trial judge adverted to your age and again at page 26, lines 20 and 21, the trial judge referred to your age. Not only that the trial judge considered the appellant’s age, but he also took into account all mitigating factors in favour of the appellant, such as he was a first time offender.

On page 24 of the appeal book, His Honour took those mitigating factors into consideration. They include the guilty plea and your family status. We are of the view that the second ground of this appeal has no merit.

We have considered both your written and oral submissions and we are of the opinion that the appellant had no lawful excuse to commit the brutal killing of the deceased.

On the ground of the excessiveness of sentence, it is a principle of law which has been developed by the Supreme Court that, for an appellant to succeed in his appeal, he must show to this Court an error or errors which ought to be either identifiable or unidentifiable which should have the effect of vitiating the trial judge’s sentencing discretion - William Norris v. The State [1979] PNGLR 605. We find that His Honour, the trial judge, appropriately addressed the issue of prevalency of murder cases and a total disregard for human life at pages 23 to 26 of the appeal book.

It is noted here, that the Parliament decided that the penalty for the crime of murder must be life imprisonment. This is the maximum, subject to s. 19 of the Code. A number of cases were cited by the trial judge including that of the State v. Laura (No. 2) [1988-89] PNGLR 98. That was a murder case where His Honour, the late Chief Justice, Sir Buri Kidu, set out appropriate tariffs for murder cases. We agree with the trial judge that since Laura (No. 2) sentences for murder have increased.

We are of the view that the sentencing range established in the above case is no longer appropriate to the circumstances of the country today. There are many murder cases committed now a days by the use of guns, axes and bush knives as in the case of the instant appeal. We agree and adopt the principle that each case of murder ought to considered or determined on its own merit.

A perusal of the facts of this case, this Court considers that there were no special mitigating features in your case. All you did was walked up behind the deceased and chopped...