Daniel Duale Wera v The State

• Jurisdiction: Papua New Guinea
• Judge: Kariko,Anis,Berrigan JJ
• Judgment Date: 29 March 2023
• Neutral Citation: SC2367
• Citation: SC2367, 2023-03-29
• Counsel: Mr D Wera, Applicant in person,Mr D Kuvi, for the Respondent/State
• Docket Number: SCREV 19 OF 2019
• Hearing Date: 21 February 2023,29 March 2023
• Court: Supreme Court

SC2367

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV 19 OF 2019

Daniel Duale Wera

Applicant

v.

The State

Respondent

Waigani: Kariko, Anis and Berrigan JJ

2023: 21^st February and 29^th March

REVIEW OF SENTENCE — Wilful Murder — Principles applied — No identifiable error on the face of the record — Sentence of 30 years not manifestly excessive — Review dismissed.

The applicant was convicted of wilful murder following trial and sentenced to 30 years of imprisonment.

Between 8 am and 9 am on 13 May 2014 the applicant was with members of his family some of whom were armed with iron bars, sticks and stones. At the time the applicant was armed with an iron bar. For reasons that are not clear he crossed the road and entered the yard of the deceased who was sitting outside his house with two of his relatives, Nancy and Wesley. Despite the efforts of his relatives to pull him out of the premises, the applicant proceeded to attack the deceased and his relatives. He swung the iron bar at Nancy but missed her. He then swung at Wesley but also missed him. He then struck the deceased, who was unarmed and defenceless, on the head. The applicant lifted the iron bar and hit the deceased again, causing him to fall on to the ground, and walked off. Nancy and Wesley quickly called for a taxi but the applicant stood on the road and frightened the taxi driver away. Eventually another taxi arrived and transported the deceased to the hospital where he died as a result of blood loss caused by the head injuries.

The applicant applied for review of his sentence on the basis that the learned trial judge failed to take into account his remorse on allocutus and gave no weight to his character before and after the offence was committed. Alternatively, it was argued that the sentence was manifestly excessive.

Held:

(1) The sentencing judge was entitled to find that the applicant's expression of remorse on allocutus was of limited weight and lacking sincerity at that stage of the proceedings and having had the opportunity to hear and observe the applicant at trial and on allocutus.

(2) Cooperation with authorities will only be a significant factor in mitigation when it constitutes genuine contrition and remorse or reflects a willingness to assist authorities in their investigations and facilitate the course of justice. Cooperation may also be relevant where an offender assists in the apprehension or conviction of a co-accused with information which is full and frank, and which could significantly assist authorities: State v Richard Namaliu (2020) N8506. The weight to be given to any cooperation must be considered in combination with other relevant factors.

(3) The sentencing judge did not fail to take into account the applicant's cooperation with authorities. There was no cooperation which demonstrated genuine contrition or a willingness to facilitate the course of justice.

(4) The trial judge expressly considered the character of the applicant and was entitled to find that it was not of significant weight given the crime committed.

(5) There was no identifiable error on the part of the sentencing judge.

(6) Considering that the maximum penalty for wilful murder at the time of the offence was death, and that the circumstances of the case placed the severity of the crime committed within category two of the guidelines in Manu Kovi v The State (2005) SC789, which suggest a sentencing range of 20 to 30 years, and noting the aggravating circumstances of the case, the very limited nature of matters in mitigation, and the wide discretion of the sentencing judge, the applicant has failed to demonstrate that the sentence imposed is out of all reasonable proportion to the crime committed.

Review against sentence dismissed.

Cases Cited:

Papua New Guinean Cases

Allan Peter Utieng v State (2001) SCR No 15 of 2000

Kalabus v The State [1988] PNGLR 193

Manu Kovi v The State (2005) SC789

Ruddy Yekat v State [2000] PNGLR 225

Steven Ume & 2 Ors v The State (2006) SC836

State v Richard Namaliu (2020) N8506

The State v Warur (2018) N7545

William Norris v The State [1979] PNGLR 605

Overseas Cases

R v Cartwright (1989) 17 NSWLR 243

References Cited

Section 299 of the Criminal Code

Section 55(2)(b) of the Constitution

Counsel

Mr D Wera, Applicant in person

Mr D Kuvi, for the Respondent/State

Mr Daniel Wera: In person

Office of the Public Prosecutor: Lawyer for the Respondent

DECISION ON REVIEW

29^th March, 2023

1. BY THE COURT: The applicant was found guilty of the wilful murder of Mathew Rokapiri Rombala contrary to s 299 of the Criminal Code. He was sentenced to 30 years' imprisonment to be served in hard labour, less time spent in custody.

2. The applicant appealed against conviction, which was dismissed. He was subsequently granted leave to review his sentence pursuant to s 155(2)(b) of the Constitution in October 2022.

3. The trial judge found that between 8 am and 9 am on 13 May 2014 the applicant went in the company of others to the residence of a relative, Paul Bari, at Spoonbill Drive, in Erima. The deceased was with two of his relatives, Nancy Kundiri and Wesley Bobby, sitting in their residential yard across the road in the same street. During the morning the offender entered the deceased's premises unlawfully in the company of a group of men, armed with a four-corner iron bar, and began to threaten the deceased and his relatives. The men he was with tried to pull the applicant back out of the premises but he refused and continued to attack the deceased and his relatives. He swung the iron bar at Nancy but missed her. Then he swung the iron bar at Wesley but also missed him. The third time he swung the iron bar he hit the deceased, who was unarmed and defenceless, on his head. He lifted the iron bar and hit the deceased again, causing him to fall forward onto the ground and walked off. Nancy and Wesley quickly called for a taxi but the applicant stood on the road and frightened the taxi driver away. Eventually another taxi arrived and transported the deceased to the hospital where he died as a result of blood loss caused by the head injuries.

Grounds

4. The applicant seeks review of his sentence on the grounds that: a) the learned trial judge failed to take into account his expression of remorse on allocutus; b) gave no weight to his good character before and after the offence was committed; and c) failed to take account of extenuating circumstances.

Submissions

5. It was apparent during submissions that the matters raised as extenuating circumstances by the applicant were in fact challenges to the conviction itself. The appeal against conviction has been heard and determined and it is not necessary to discuss the matters further.

6. On the matter of allocutus, the applicant submits that there was clear evidence of contrition and remorse, which should have counted in his favour. He complains that the judge said in his sentencing remarks that: “I do not place much weight to his expression of his remorse, it came far too late…”, without saying why it was too late and when was the right time to express it.

7. The applicant further submits that the sentencing judge failed to give any weight to the character references provided by Correctional Services and Pastor Dimon Gah of Revival Centres of Papua New Guinea. He also failed to take into account that the applicant had voluntarily called the investigating officer and gone and met with him at Boroko Police Station and allowed police to complete the investigation.

8. Finally, whilst not articulated in these terms, it is also clear that the applicant challenges the sentence on the basis that it is manifestly excessive. He ultimately submitted that a sentence of between 20 and 25 years of imprisonment pursuant to category two of Manu Kovi v The State (2005) SC789 should be substituted having regard to the following circumstances: it was a vicious attack involving the use of an offensive weapon but there was no pre-planning, no strong intention to kill, and there were mitigating circumstances.

Consideration

9. The Supreme Court will not readily disturb the discretionary power of a sentencing judge. For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence. Such an error may be identifiable: the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken...