Public Prosecutor v Yapuna Kaso

• Jurisdiction: Papua New Guinea
• Citation: [1977] PNGLR 209
• Date: 30 June 1977
• Court: Supreme Court
• Year: 1977

Supreme Court: Frost CJ, Prentice DCJ, Saldanha J

Judgment Delivered: 30 June 1977

1 Criminal law—practice and procedure—appeal—sentence—inadequacy—charge of murder—no application by counsel for accused for entry of plea of not guilty—entry of plea of guilty—on the depositions defence of manslaughter clearly raised—upon sentence conviction treated as for manslaughter—propriety of entry of plea—in the circumstances of entry of plea—in the circumstances conviction treated on same basis as by trial judge

2 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 s305 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 the 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 s23 of the Supreme Court Act 1975 against sentence on the ground of inadequacy.

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Frost CJ:

This is an appeal against a decision of the National Court on...