Public Prosecutor v Tom Ake

• Jurisdiction: Papua New Guinea
• Judge: Prentice CJ, Pritchard J, Greville–Smith J
• Judgment Date: 01 December 1978
• Citation: [1978] PNGLR 469
• Court: Supreme Court
• Year: 1978
• Judgement Number: SC142

Supreme Court: Prentice CJ, Pritchard J, Greville–Smith J

Judgment Delivered: 1 December 1978

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PUBLIC PROSECUTOR

V

TOM AKE

Waigani

Prentice CJ Pritchard Greville Smith JJ

29 November 1978

1 December 1978

CRIMINAL LAW — Appeal against sentence — Murder — Relevant matters for consideration — Public deterrence to be emphasized — Plea of guilty, work-background and youthfulness of limited relevance — Appeal against inadequacy — Sentence of 8 years substituted for sentence of 4 years.

CRIMINAL LAW — Sentence — Plea of guilty — "Most favourable version of facts" doctrine — Applicability where no challenge to facts in state case on plea.

On appeal against inadequacy of sentence, where the accused was convicted on a plea of guilty on a charge of murder and sentenced to 4 years imprisonment with hard labour, it appeared that the accused, a man in his late twenties with no prior convictions, with a steady work record and two wives and six children had, following an altercation, attacked an off duty and out of uniform police constable with a weapon, hitting him savagely on the back of his head;

Held

(1) When no challenge is made to any of the facts alleged in the state case on a plea of guilty, the doctrine that the version of the facts most favourable to the accused should be acted upon, does not apply.

O'Malley v. French (1971) 2 S.A.S.R. 110 at p. 112; and Reg. v. Gabai Vagi and Ors. [1973] P.N.G.L.R. 30 distinguished.

(2) Matters which ought not to be taken into account on sentence on a charge of murder as mitigating factors except to a limited extent, (and which were so taken into account) include the question of "youthfulness", industry in employment, and the fact of a plea of guilty, except to the possible extent that it indicates remorse and contrition and the possibility of a more ready rehabilitation.

Reg. v. De Haan [1968] 2 Q.B. 108 referred to.

(3) Matters which ought to be taken into account on sentence on a charge of murder (and which were not given sufficient weight in the present case) include the nature of the attack, the element of pre-intention, the degree of sophistication of the accused and the retributive and public deterrent elements of the punishment required.

(4) Accordingly, there had been a manifest error of insufficiency of sentence in the present case and a sentence of eight years imprisonment with hard labour should be substituted.

Appeal

This was an appeal against sentence by the Public Prosecutor pursuant to s. 23 of the Supreme Court Act 1975 on the ground of inadequacy of sentence. The sentence appealed against was a term of imprisonment with hard labour for 4 years on a charge of murder.

Counsel

M. Kapi, for the appellant.

G. Poole, for the respondent.

Cur. adv. vult.

1 December 1978

PRENTICE CJ PRITCHARD GREVILLE SMITH JJ: This is an appeal brought by the Public Prosecutor under s. 23 of the Supreme Court Act 1975, on the ground of inadequacy of sentence. A preliminary point was argued as to whether the Court should adhere to the rulings of the pre-Independence Full Court in Pia-Afu's case [1971-1972] P. & N.G.L.R. 393.1 and other decisions, as followed subsequently by this Court. The question was discussed but not decided in Public Prosecutor v. John Aia and Peter Pino [1978] P.N.G.L.R. 224.2. If the principle of the decision in Pia-Afu's case were to remain the...