Kepa Wanege v The State (2004) SC742

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Kandakasi J, Lenalia J
• Judgment Date: 01 April 2004
• Citation: (2004) SC742
• Docket Number: SCR No 35 of 2003
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC742

Full Title: SCR No 35 of 2003; Kepa Wanege v The State (2004) SC742

Supreme Court: Sevua J, Kandakasi J, Lenalia J

Judgment Delivered: 1 April 2004

1 APPEAL—PRACTICE AND PROCEDURE—Appeal against sentence—Supreme Court cannot interfere unless a clear case of error is demonstrated—Lenient sentence imposed—No error vitiating the trial judge's exercise of discretion—Warning that Supreme Court will exercise its powers under s23(4) of the Supreme Court Act (Ch37) whether or not the Public Prosecutors cross–appeals and asks for it given more unmeritorious appeals coming through resulting in wastage of limited public funds and Courts limited time..

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—No case ruling without hearing parties—Highly irregular practice that should not be repeated—The prosecution and the defense must be first heard before Court arrives at a decision—Failure to do so amounts to serious miscarriage of justice as a decision against the prosecution puts an end to its case for good as it does not have any right of appeal—National Court as a discretion to arrive at such a decision but must be arrived at only after having heard the parties and giving careful consideration to the evidence before and only in the clearest of cases—Effect of ruling on co–offender—No bar for Court to note the offence committed in the company of another.

3 CRIMINAL LAW –Appeal against sentence—Murder –Offence committed over a land dispute—Deceased attacked from the back by two men—Axe use to effect fatal blow—Deceased dying from axe wound at the scene shortly after the attack—Guilty plea—First time offender—No prove of customary compensation paid—Aggravating factors outweigh factors in mitigation—Sentence of life imprisonment warranted—Sentence imposed too lenient—No Cross–appeal or argument for increase in sentence—Sentence of 20 years confirmed with warning that in future the Supreme Court will exercise its powers under s23(4) of the Supreme Court Act (Ch37).

4 The State v Darius Taulo (2001) N2034, Sakarowa Koe v The State (2004) SC739, The State v Fredinand Naka Penge (2002) N2244, Jimmy Ono v The State (2002) SC698, Wanosa v R [1971–72] PNGLR 90, Norris v The State [1979] PNGLR 605, Ian Napoleon Setep v The State (2001) SC666, Joshua Yaip Avini v The State [1997] PNGLR 212, The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98, Lawrence Simbe v The State [1994] PNGLR 38, The State v Joseph Ulakua (2002) N2240, The State v Tony Pandau Hahuahori (No 2) (2002) N2186, The State v Tom Keroi Gurua (2002) N2312, The State v Kevin Anis (2003) N2360, The State v Dominic Mangirak (2003) N2368, The State v Raphael Kimba Aki (No 2) (2001) N2082, Max Java v The State (2002) SC701, The State v Saku Sogave (2000) N2086, Simon Kama v The State (2004) SC740 referred to

Facts

This was an appeal against a sentence of 20 years less time spent in custody on a guilty plea to a charge of murder on grounds of excessiveness and failure to take into account claims of compensation payment and surrendering to authorities. The appellant did not raise the issues of compensation and surrendering to authorities before the trial judge. The appellant and his father had an argument with another person now deceased, over a piece of land. On the day of the offence, the deceased took some tree branches for firewood from the disputed land. The appellant and his father followed the deceased from behind, attacked the deceased, cut the deceased on his head with an axe twice, and hit him all over his body with sticks resulting in serious injuries to his body. The deceased eventually died from the injuries he received to his head. The father pleaded not guilty to the charge and following a short trial, the National Court acquitted him on its own volition without allowing parties to make any submissions. The trial judge found that the medical report spoke of a single wound as opposed to two wounds separately inflicted upon the deceased according to the oral testimony of witnesses who said the appellant and his father cut the deceased twice on the same spot.

Held

1. The learned trial judge committed a serious irregularity and therefore a serious error when:

(a) he decided that the appellant's father did not have a case to answer on his own volition and in so doing denied the parties and in particular the prosecution which case had to end its case at that stage the right to be heard first before arriving at that decision; and

(b) there was evidence of the appellant's father acting in concert with the appellant pursing a common purpose within the meaning of s7 and s8 of the Criminal Code and therefore had a case to answer.

The practice adopted by the learned trial judge was highly irregular and as such it should never be adopted. Joshua Yaip Avini v The State [1997] PNGLR 212 distinguished.

1. The issue of surrendering to authorities was not an issue raised before the trial judge, and that precluded the appellant from raising it on appeal because in fairness, the learned trial judge had no opportunity to consider it and arrive at a decision.

2. The sentence of 20 years was lenient given the current sentencing trends and the seriousness of the offence. The sentence was therefore not excessive.

3. In the circumstances, the learned trial judge did not fall into any identifiable error against the appellant that vitiated the exercise of the learned trial judge's sentencing discretion and therefore warranting an inference by the Supreme Court of the exercise of that discretion in the terms asked for by the appellant. The Supreme Court therefore dismissed the appeal and confirmed the sentence imposed by the National Court.

___________________________

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 35 of 2003

KEPA WANEGE

-V-

THE STATE

MT. HAGEN: SEVUA, KANDAKASI, LENALIA, JJ.

2004: 31st March

1st April

APPEAL – PRACTICE & PROCEDURE - Appeal against sentence – Supreme Court cannot interfere unless a clear case of error is demonstrated – Lenient sentence imposed – No error vitiating the trial judge’s exercise of discretion – Warning that Supreme Court will exercise its powers under s.23(4) of the Supreme Court Act Chp.37 whether or not the Public Prosecutors cross-appeals and asks for it given more unmeritorious appeals coming through resulting in wastage of limited public funds and Courts limited time..

CRIMINAL LAW – PRACTICE & PROCEDURE – No case ruling without hearing parties – Highly irregular practice that should not be repeated - The prosecution and the defense must be first heard before Court arrives at a decision – Failure to do so amounts to serious miscarriage of justice as a decision against the prosecution puts an end to its case for good as it does not have any right of appeal – National Court as a discretion to arrive at such a decision but must be arrived at only after having heard the parties and giving careful consideration to the evidence before and only in the clearest of cases – Effect of ruling on co-offender – No bar for Court to note the offence committed in the company of another.

CRIMINAL LAW –Appeal against sentence – Murder –Offence committed over a land dispute – Deceased attacked from the back by two men – Axe use to effect fatal blow – Deceased dying from axe wound at the scene shortly after the attack - Guilty plea - First time offender – No prove of customary compensation paid – Aggravating factors outweigh factors in mitigation – Sentence of life imprisonment warranted – Sentence imposed too lenient – No Cross-appeal or argument for increase in sentence – Sentence of 20 years confirmed with warning that in future the Supreme Court will exercise its powers under s. 23(4) of the Supreme Court Act (Chp.37).

Facts

This was an appeal against a sentence of 20 years less time spent in custody on a guilty plea to a charge of murder on grounds of excessiveness and failure to take into account claims of compensation payment and surrendering to authorities. The appellant did not raise the issues of compensation and surrendering to authorities before...