Peremai Naroi v The State [1987] PNGLR 293

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J:
• Judgment Date: 25 August 1987
• Citation: [1987] PNGLR 293
• Court: Supreme Court
• Year: 1987
• Judgement Number: SC343

Full Title: Peremai Naroi v The State [1987] PNGLR 293

Supreme Court: Woods J, Los J, Hinchliffe J

Judgment Delivered: 25 August 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PEREMAI NAROI

V

THE STATE

Waigani

Woods Los Hinchliffe JJ

25 August 1987

CRIMINAL LAW — Sentence — Plea of guilty — Version of facts upon which court to act — Where divergence not raised court entitled to act on State version — Procedure where divergence.

Held

In imposing a sentence on a plea of guilty the trial judge is entitled to assume, where no divergence of facts is raised, that the facts as presented by the State are admitted by the defence.

Imiyo Wamela v The State [1982] PNGLR 269 at 280, applied.

R v Taylor (1986) 84 Cr App R 202 and Thompson v The Queen [1973] Tas SR 78 at 89, considered.

Where, on a plea of guilty, there is a divergence between the defence version and the prosecution version of the facts of the offence in question, it is for the prosecution to remind the trial judge as early as possible of the facts upon which there is divergence and if either side wishes for the dispute to be resolved, they should so submit to the judge.

Cases Cited

Imiyo Wamela v The State [1982] PNGLR 269.

R v Taylor (1986) 84 Cr App R 202.

Thompson v The Queen [1973] Tas SR 78.

Leave to Appeal and Appeal

This was an application for leave to appeal and an appeal against severity of sentence for unlawful assault occasioning grievous bodily harm.

Counsel

E V Batari, for the appellant.

C Russell, for the respondent.

25 August 1987

WOODS J: This is an appeal against the severity of the sentence imposed by the National Court on 19 November 1986 following conviction on a charge of unalwful assault causing grievous bodily harm.

The main contention by the appellant on the severity of the sentence is that this was a plea of guilty and that his plea admitted only the essential elements of the charge and that for the judge to conclude that serious injuries were caused to the victim and such injuries led to the deterioration of the victim's health thereby placing this offence in a most serious category is an identifiable error.

The case in the depositions was that on 6 January 1985, the accused and his wife were in a canoe. The accused struck his wife on the head with an axe and struck her on the chest with a paddle. Other witnesses deposed to the wife being seriously injured; that she was unconscious for a time and lost a lot of blood; that she got weaker later as a result of the injuries; that she had difficulty breathing with chest pains and that she had a cut across her head and a chest wound. There was no medical treatment given to the victim nor was there any medical evidence and apparently the wife died two weeks later.

The accused on arraignment was arraigned that he cut his wife on the head with an axe and caused a wound to her chest by using a canoe paddle and he admitted that this was true. Further, in his record of interview he admitted:

· — hitting his wife with a paddle,

· — having an argument with his wife,

· — "I only hit her at the back of the head with the handle of my paddle,"

· — she did suffer,

· — admitted beating her up.

In his submissions, counsel for the appellant has not denied that there were two wounds to the victim.

The law is well settled, that where on a plea of guilty there is a divergence between the defence and prosecution version of the facts of the offence in question, it is for the prosecution to remind the trial judge as early as possible of the facts upon which there is divergence. In any event if either side wish for the dispute to be resolved they should so submit to the judge. I refer here to R v Taylor (1986) 84 Cr App R 202. And (at 203) I quote what was said by Parker LJ:

"It should be stressed that if there is a divergence of which the Prosecution are aware, and in the normal event they will be aware, and should be made aware, it is for the Prosecution to remind the Judge as early as possible in the case of the points upon which there is divergence and what this Court laid down as the proper method of dealing with it in R v Newton (1983) 77 Cr App R 13. If the Prosecution are unaware, then as soon as the matter arises, if the Defence do not raise the matter, the Prosecution should do so. If either side wish for the dispute to be resolved they should so submit to the Judge. ... In the present case, the conflict not having been resolved and the Defence version given not being so transparently unacceptable that the learned judge was entitled to sweep it aside, he should have proceeded on the basis of that version and this Court must so proceed."

However, are the facts of these cases similar. In Taylor's case the defence version of the facts was crucially and radically different from the version which had been opened by the prosecution and was accepted by the judge. I refer here (at 203) of Taylor's case where the judge pointed out:

"that the part of Andrew in the matter was entirely peripheral and could not properly have attracted more than a short sentence of imprisonment, if any. So far as Brian was concerned it was a case of exchange of punches with the taxi driver, after which he and his brother Andrew had both made off. According to that version, there was no question of the taxi driver having been...