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

• Jurisdiction: Papua New Guinea
• Date: 01 April 2004
• Citation: (2004) SC741
• Docket Number: SCR 7 of 2003
• Court: Supreme Court
• Year: 2004

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, William 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] PNGLR 344, 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.

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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 11 December 2002.

Your co–offenders and appellants Joseph Nimagi and Tom Gurua Kerui's appeals were dismissed by this Court on 30 March 2004, for want of prosecution pursuant to Order 7 Rule 53 of the Supreme Court Rules. They escaped from Bundaira CIS on 25 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 (SCRA 54 of 2000) (Unreported and Unnumbered judgment dated 22 or 26 November 2000 or 2001); 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 (2002) SC701, the Court confirmed a sentence of 20 years on a plea of guilty to murder, where the appellant had pursued the deceased and attacked...