Public Prosecutor v Yapuna Kaso

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ, Prentice DCJ, Saldanha J
• Judgment Date: 30 June 1977
• Citation: [1977] PNGLR 209
• Court: Supreme Court
• Year: 1977
• Judgement Number: SC118

Supreme Court: Frost CJ, Prentice DCJ, Saldanha J

Judgment Delivered: 30 June 1977

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

YAPUNA KASO

Waigani

Frost CJ Prentice DCJ Saldanha J

27 June 1977

30 June 1977

CRIMINAL LAW — Appeal against sentence — Inadequacy of sentence — Murder — Entry of plea of guilty — On depositions offence of manslaughter clearly raised — Conviction treated as one for manslaughter on sentence by trial judge — Appeal treated on same basis as by trial judge — Term of 4 years 9 months imprisonment substitruted for term of 16 months imprisonment (taking into account 3 months in custody awaiting trial).

On appeal against inadequacy of sentence in circumstances where the respondent pleaded guilty to, and was convicted of, murder under s. 305 of the Criminal Code and sentenced to imprisonment for 16 months (taking into account 3 months in custody awaiting trial), the evidence disclosed that the respondent whilst affected by liquor, went to the nearby village of Puri in search of beer where he came upon a party of men from his own village in conflict with a group of Puri men. The respondent, who was unarmed, attempted to stop the fighting in the course of which he was whipped by a Puri man and subsequently attacked by the deceased who was armed with an axe. In the course of this fight the deceased was killed by a blow, delivered with the blunt end of the axe to the deceased's head. Although the respondent pleaded guilty to murder and the plea was accepted by the trial judge, in his remarks on sentence the trial judge said that the offence was "closer to manslaughter than to murder", and proceeded to sentence th respondent as for manslaughter;

Held

(1) On the most favourable view of the facts it was doubtful whether the respondent could have been found guilty of murder; and even on a less favourable view of the facts the respondent would have been entitled to rely upon the defence of provocation thus reducing the offence to manslaughter.

(2) In all the circumstances the respondent's conviction for murder was unsatisfactory, but there being no appeal against conviction the conviction for murder must stand.

(3) In the interests of justice the question of adequacy of sentence must be considered on the basis that the conviction was a conviction for manslaughter.

(4) In all the circumstances, particularly the use of an axe in the comparatively well settled district, the sentence of 16 months imprisonment (taking into account 3 months in custody awaiting trial) was inadequate and a sentence of 4 years 9 months imprisonment should be substituted.

Appeal

This was an appeal pursuant to s. 23 of the Supreme Court Act 1975 against sentence on the ground of inadequacy.

Counsel

J. L. Cagney, for the appellant.

G. C. Lalor, for the respondent.

Cur. adv. vult.

30 June 1977

FROST CJ: This is an appeal against a decision of the National Court on 5th April, 1977 at the Goroka sittings whereby, upon a plea of guilty, the respondent was convicted on a charge of murder under s. 305 of the Criminal Code, for which life imprisonment may be imposed.

The grounds of appeal are that the sentence imposed, which was for imprisonment for 16 months, but taking into account a period during which the respondent was in custody awaiting trial effectively for 19 months, is inadequate and insufficient, and that in imposing sentence the trial judge did not give sufficient weight to some considerations and undue weight to another.

The appeal is brought pursuant to the Supreme Court Act 1975, s. 23. Upon such an appeal the Supreme Court has an unfettered discretion to vary the sentence imposed by the trial judge. The only qualification is that the Court will not interfere with the sentence pronounced by the trial judge unless it is clearly satisfied that the sentence should be altered. Regina v. Pia-Afu [1971-72] P. & N.G.L.R. 393.

The facts are that on the afternoon or evening of 24th December, 1976 a party of men from Asimango, the accused's village, went to the nearby village of Puri in which the deceased lived. There are conflicting statements in the depositions as to whether the respondent went with the main party or later, as he claimed in his record of interview, affected by liquor and looking for more beer, but he was certainly there when trouble arose between the men of the two villages. The reason for the incursion was that the Asimango men believed that a Puri man had been involved in an affair with a woman, apparently the sister of the accused, from their village.

From the depositions of a councillor and a village peace officer from Asimango, it is quite clear that the men from Asimango grabbed the man whom they suspected and mauled him. After repeated attempts to stop the disturbance, an Asimango councillor succeeded in getting the men to listen to him. But then a Puri boy got a whip, which was described as "a kind of tube and inside of it was wire", and came and whipped the respondent, striking him at least one hard blow on the back. The respondent chased the boy who ran away. The boy returned with a piece of wood. When the Puri men saw this they also got their sticks and a stick and fist fights developed between the two clans.

At this stage the deceased came down to the main road separating the villages. He was armed with an axe. There is no suggestion that the respondent was armed. A fight then developed between them during which the deceased was killed by a blow, delivered with the blunt end of the axe to the deceased's head.

It is convenient now to turn to the course that the proceedings took...