Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v The State (2004) SC741

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Kandakasi J, Lenalia J
• Judgment Date: 01 April 2004
• Citation: (2004) SC741
• Docket Number: SCR 7 of 2003
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC741

Full Title: SCR 7 of 2003; Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v The State (2004) SC741

Supreme Court: Sevua J, Kandakasi J, Lenalia J

Judgment Delivered: 1 April 2004

1 CRIMINAL LAW—Murder—Sentence—Plea of Not guilty—Conviction after trial—Sentence of 50 years—Whether manifestly excessive—Facts disclose possible charge of willful murder—Offence committed in the course of armed robbery—Use of firearm—First time offender—No expression of remorse to relatives of deceased—Sentence imposed lenient in the circumstances—No cross–appeal or an argument for increase on sentence—Sentence by National Court confirmed with warning that the Supreme Court will exercise its power under s23(4) Supreme Court Act (Ch37) with or without cross–appeals or arguments for increase in sentences in appropriate cases—Youthfulness no longer a relevant consideration in serious violent offences.

2 Criminal Code, s19, s300—Supreme Court Act, s23(4).

3 Simon Kama v The State (2004) SC740, Norris v The State [1979] PNGLR 605, Pauline Painuk v The State (SCRA 54 of 2000) (Unreported and Unnumbered judgment dated 22 or 26 November 2000 or 2001), Max Java v The State (2002) SC701, The State v Thomas Waim [1995] PNGLR 187, Bokun Umba v The State (1976) SC92, The State v Michael Amuna Koupa [1987] PNGLR 208, The State v Kevin Anis (2003) N2360, The State v Wesley Nobudi (2002) N2510, Goli Golu v The State [1979] PNGLR 653, Ure Hane v The State [1984] PNGLR 105, The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98, Peter Naibiri and Kutoi Soti Apia v The State (1978) SC137 referred to

Held:

1. The appellant has not demonstrated any identifiable error in the exercise of the Court's sentencing discretion.

2. In the circumstances of the case, the sentence of 50 years is neither excessive nor manifestly excessive

3. This is a case in which the appellants should have been indicted with willful murder and the death penalty considered.

4. In terms of s23(4) of the supreme Court Act, this Court now issues a warning that in future, the Court will exercise its power to increase sentences which it considers appropriate in appeals against severity of sentences.

___________________________

PAPUA NEW GUINEA

[Supreme Court of Justice]

SCR 07 OF 2003

BETWEEN

JOSEPH NIMAGI, TOM GURUA KERUI

and DAVID BAWAI LAIAM

Appellant

AND

THE STATE

Respondent

Mt Hagen : Sevua, Kandakasi & Lenalia, JJ

2004 : 30th March and 1st April

CRIMINAL LAW – Murder – Sentence – Plea of Not guilty – Conviction after trial – Sentence of 50 years – Whether manifestly excessive – Facts disclose possible charge of willful murder – Offence committed in the course of armed robbery – Use of firearm – First time offender – No expression of remorse to relatives of deceased – Sentence imposed lenient in the circumstances – No cross-appeal or an argument for increase on sentence – Sentence by National Court confirmed with warning that the Supreme Court will exercise its power under s.23 (4) Supreme Court Act (Chp. 37) with or without cross-appeals or arguments for increase in sentences in appropriate cases – Youthfulness no longer a relevant consideration in serious violent offences.

Criminal Code Act, ss. 19, 300 – Supreme Court Act, s.23 (4).

Held:

1. The appellant has not demonstrated any identifiable error in the exercise of the Court’s sentencing discretion.

2. In the circumstances of the case, the sentence of 50 years is neither excessive nor manifestly excessive

3. This is a case in which the appellants should have been indicted with willful murder and the death penalty considered.

4. In terms of s. 23 (4) of the supreme Court Act, this Court now issues a warning that in future, the Court will exercise its power to increase sentences which it considers appropriate in appeals against severity of sentences.

Cases cited:

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

Pauline Painuk v. The State; unnumbered & unreported, (SCRA 54 of 2000), 22nd November 2000

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

The State v. Thomas Waim; [1995] PNGLR 187

Bokum Umba v. The State; SC 92, unreported, 2nd April 1976

The State v. Michael Amuna Koupa; [1987] PNGLR 208

The State v. Kevin Anis & Martin Ningigan; N2360, unreported, 7th June 2003

The State v. Wesley Nobudi & Ors.; N2310, unreported, 19th December 2002

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

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

The State v. Laura No 2; [1988-89] PNGLR 83

Appellant in person

R.Auka for Respondent

1st April 2004

BY THE COURT: You David Bawai Laiam have appealed against the sentence of 50 years imposed on you by the National Court at Bulolo on 11th December 2002.

Your co-offenders and appellants Joseph Nimagi and Tom Gurua Kerui’s appeals were dismissed by this Court on 30th March 2004, for want of prosecution pursuant to Order 7 Rule 53 of the Supreme Court Rules. They escaped from Bundaira CIS on 25th August 2003 and are still at large and failed to prosecute their appeals. We note too that you also escaped with those two prisoners, but were recaptured and returned to prison.

In your notice of appeal, you stated your ground of appeal as, “I am appealing against the National Court’s sentence which was handed down on me to serve.” We consider that you are appealing against sentence only.

In your written submissions you made a number of submissions. First, you said that the sentence was crushing on you therefore you asked this Court to review the sentence. Secondly, you said the trial Judge did not consider that you were a first offender in the early age of 18 years. Thirdly, the murder was not planned but was an accident as you did not mean to kill the deceased. Fourthly, you said the trial Judge was unfair to you because he imposed 50 years on you whereas a co-accused, Joseph Nimagi, was sentenced to only 20 years. Your argument is that regardless of whether Joseph Nimagi acted as a watchman or pulled the trigger you all should have been treated in the same way. Finally, you submitted that a sentence of 20 years was appropriate in your case.

Again, the Court needs to reiterate the law relating to an appeal against sentence. The Supreme Court established the relevant principle in William Norris v. The State [1979] PNGLR 605 at page 612, where the Court said:

“the principle applicable is 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”.

Since that decision, the Supreme Court has, in many published and unpublished judgments, dismissed appeals on the basis of that principle. Our attention has been drawn to two most recent Supreme Court judgments during this circuit and we cite them here. In Pauline Painuk v. The State, unnumbered and unreported, (SCRA 54 of 2000), 22nd November 2000; the Court confirmed a sentence of 18 years to a plea of murder where the appellant had stabbed the deceased, a young school girl, twice. And in Max Java v. The State, SC 701, unreported, 20th December 2002, the Court confirmed a sentence of 20 years on a plea of guilty to murder, where the appellant had pursued the deceased and attacked him with a grass knife causing severe injuries resulting in death. On appeal, the Court said at page 3, “Having regard to the prevalence of violent offences in the community, we cannot conclude that the sentence is manifestly excessive.” We adopt that view and apply it to the present case.

We are of the view that this is a very bad case of murder which falls into what has been described in other cases as the worst type of cases which warrants the maximum penalty of life imprisonment. We restate the facts as found by the trial Judge to highlight and demonstrate the very serious nature and circumstances of the case.

The trial Judge’s judgment on verdict on pages 220 to 239 of the transcript described the evidence presented by the prosecution witnesses as proven facts at page 234 as follows:

“ These three accused were together in the afternoon on the day during

which time they had some drinks. As the night approached, their drinks

ran out and Tom Gurua decided that they should go and visit his ex girl

friend , one Imelda, a teacher at Marian Hill Primary School. The three

men walked to Block 9 where they were joined by two small boys aged

11 and 13 respectively. Between 7 pm and 7.30 pm, they made their way

to Marian Hill. Except for the accused Joseph Nimagi and the two small

boys, Rocky Emmanuel and Moru Melei, Tom Gurua and David Bawai

were eached armed with home made guns commonly referred to as pop

guns.

After leaving the two small boys outside the fence in the darkness, they

checked for Imelda at her place and she was not home. The three men

then converged on the group that was gathered at the...