Joe Giamur v The State (2006) SC884

• Jurisdiction: Papua New Guinea
• Judge: Sevua Kandakasi and Gabi JJ
• Judgment Date: 23 February 2006
• Citation: (2006) SC884
• Year: 2006
• Court: Supreme Court
• Docket Number: SCRA 39 OF 2004
• Judgement Number: SC884

Full Title: SCRA 39 OF 2004; Joe Giamur v The State (2006) SC884

Supreme Court: Sevua, Kandakasi, and Gabi, JJ

Judgment Delivered: 23 February 2006

SC884

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 39 OF 2004

BETWEEN:

JOE GIAMUR

Appellant

AND

THE STATE

Respondent

Kokopo & Kimbe: Sevua, Kandakasi, and Gabi, JJ.

2006: 30 August

23 February

APPEALS – PRACTICE & PROCEDURE – Power of the Supreme Court on appeal – Power to increase sentences – Sentence imposed by trial judge below guidelines recommended by the Supreme Court – No reason offered for departing from set guidelines and tariffs - National Court sentence quashed and substituted – Section 23 (4) Supreme Court Act (ch 37).

CRIMINAL LAW – Appeal against sentence – Manslaughter - Guilty plea – Repeated punches – Causing broken neck and rapture of spleen - Trial judge imposed 7 years with 12 months suspension - Sentence manifestly low and inconsistent with sentencing tariffs and guidelines set by the Supreme Court – No reason offered for departing from - Sentence increased to 14 years in hard labour – Section 302 Criminal Code.

CRIMINAL LAW - PRACTICE & PROCEDURE – National Court bound by decisions of the Supreme Court – National Court bound to follow guidelines or sentencing tariffs set by the Supreme Court except for good reason sound in law – Failure amounts to identifiable error liable for set aside by the Supreme Court – Schedule 2.9 (1) of the Constitution – Section 23 (4) Supreme Court Act.

CRIMINAL LAW - PRACTICE & PROCEDURE – Suspension and deduction of sentence – Court under duty deduct pre-trial custody period from head sentence – Court has no power to suspend any sentence unless a pre-sentence report supports it – Suspension without support of pre-sentence report invalid and liable to set aside on appeal – Section 3 (2) of Criminal Justice (Sentences) Act 1986 - Section 19 (1) and (6) of the Criminal Code.

Cases Cited:

Norris v. The State [1979] PNGLR 605.

Acting Public Prosecutor v. Uname Aumane & Others [1980] PNGLR 510.

Acting Public Prosecutor v. John Airi (24/11/81) SC214.

Orosa Pogu v. The State [1986] PNGLR 203.

The State v. Polin Pochalon Lopai [1988-89] PNGLR 48.

The State v. Polin Pochalon Lopai [1988-89] PNGLR 48.

The State v. Rex Lialu [1988-89] PNGLR 449.

Rex Lialu v. The State [1990] PNGLR 487

James Pangnan & Patrick Ponat v. The State (SCRA 39 & 54 OF 2004, delivered on 30th August 2006,)

Counsels:

Appellants in Person.

Mr. L. Rangan, for the Respondent.

23 February, 2007

1. BY THE COURT: You are appealing against a sentence of 7 years with 1 year of that suspended by Justice Mogish on 14 May 2004 on your guilty plea to one charge of manslaughter under s. 302 of the Criminal Code.

The Relevant Facts

2. The facts giving rise to the charge, your guilty plea and eventually your conviction and sentence are these. In the early morning hours of 24 November 2001, you went to your house at Block No. 341 Section 4, Kapore Oil Palm Settlement in Kimbe after a home brew drinking session. Whilst having your meal you quarrelled with your then wife, now deceased, Carol Ian. That developed into a fight in which you used your fists to fight the deceased. The deceased eventually gave up her last breath and passed away. She was then taken to the hospital and was pronounced dead on arrival. According to a medical report, the deceased sustained bruises to her right elbow and face areas and died as a result of ruptured spleen due to trauma. The medical report does not state whether the deceased had a normal size or swollen spleen. It has already been judicially noted in our jurisdiction that, a normal size spleen would require the application of substantial force to rupture it.

1 The State v. Polin Pochalon Lopai [1988-89] PNGLR 48.

1 It follows therefore that, in the absence of any evidence to the contrary; we are of the view that the deceased spleen ruptured due to your punching her.

3. You were eventually arrested and charged with the unlawful killing of the deceased. From the judgment of the trial judge, it is also clear that you have been charged with another unrelated offence before, which was dealt with a little earlier by the same judge. The judgment notes that, you committed the offence of stealing with violence. You fought and fractured a rib and broke two of the victims tooth. Hence, this was not the first ever instance of you getting drunk and becoming violent.

4. In retaliation of your killing the deceased, her relatives burnt down 5 houses belonging to you and your relatives, destroyed several other properties and even stole some of them. Further, you were stabbed in your chest area which required medical treatment, after which you recovered without much of a disability. You and your people paid customary compensation of K2,000.

Your Appeal

5. In your notice of appeal, you set out your grounds of appeal as follows:

“A) The presiding judge didn’t seem to consider medical grounds presented by my defence council.

B) My family concern report for wilful damage to parties in retaliation for the death of my late wife. Total damage value at a cost of roughly K100,000.00.

C) Lastly the court didn’t deduct the time spent in custody as a remandee. My time so spent in custody was one year and five months.

(I) I hereby give notice of appeal and notice of application for leave to appeal against the above decision on the grounds as stated.

(II) Application for leave as it may pertain to this appeal is sought.

(III) Such further grounds as may be considered necessary may be added to this notice following legal advice give to me.”

6. In the first two grounds of your appeal, you are claiming effectively that, the learned trial judge did not take into account your medical condition as well as the wilful damage done to your property caused by the deceased relatives, before imposing the sentence the learned trial judge imposed against you. Under your third ground of appeal, you are claiming that the learned trial judge did not take into account and deduct from the head sentence your pre-trial custody period of 1 year and 5 months.

7. The next three points you raised are not grounds of your appeal. You are merely giving notice of your appeal in the first point and seeking leave of this Court where leave is required in the second point. In the third point, you are giving notice that, you may raise other grounds of appeal as they may become available to you. As it is, your third point can not be a ground of appeal because; an appellant is required to specify his grounds of appeal with sufficient particulars in order for the opposing party and the Court to appreciate the basis for the appeal. Thus a purported ground of appeal in the terms you set out in your third point means nothing and is not a proper ground of appeal. This Court has taken that position in many cases already as in the case of Sakarowa Koe v. The State.

2 (01/04/04) SC739.

2 In the circumstances we will disregard your three additional points when considering the grounds of your appeal.

States Response

8. In response to your appeal, the State submits that the trial judge did in fact take into account your medical condition as well as the damages done to your properties. In any event the State submits that, you did not provide any evidence of the full extent of the damage to your properties and their estimated value. Accordingly, the State submits that, your claim of damages up to K100,000 is a new invention. In the circumstances, the State submits that, this Court should dismiss the first two grounds of your appeal as having no merit. It further argues that, the sentence you received is manifestly low. Accordingly, it argues for this Court to increase the sentence pursuant to s. 23 (4) of the Supreme Courts Act.

3 Chapter 37.

3

9. As for the third ground of your appeal, the State concedes that the learned trial judge did fall into an identifiable error. Hence, the State submits that we should uphold this ground of your appeal and deduct the period you spent in custody awaiting your trial from the head sentence. Our perusal of the transcript of the proceedings before the National Court, which includes the decision on your sentence, confirms that position.

10. In accordance with the provisions of s.3 (2) of the Criminal Justice (Sentences) Act 1986, it is a well accepted practice for sentencing judges to have pre-trial custody periods deducted from any sentence imposed on a prisoner. Usually, most sentencing judges exercise that discretion almost as a matter of course. In your case, for reasons only known to the trial judge, he failed to order deduction of the time you already spent in custody awaiting your trial.

11. A situation similar to your case arose in the case of Orosa Pogu v. The State.

4 [1986] PNGLR 203.

4 There the Supreme Court on review of the appellant’s sentence found that the appellant had been in custody awaiting trial for 1 year and 8 months. However, the sentencing judge did not deduct that period from the head sentence. The Supreme Court found, as in your case,...