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Waria, Public Prosecutor v [1977] PGSC 18; [1977] PNGLR 170 (7 June 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 170 - Acting Public Prosecutor v Tumu Waria�

[1977] PNGLR 170

SC117

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE ACTING PUBLIC PROSECUTOR

V

TUMU WARIA OF YOGOS

Waigani

Frost CJ Prentice DCJ Williams J

2 June 1977

7 June 1977

CRIMINAL LAW - Appeal against sentence - Inadequacy of sentence - Traditional ways of community, relevance - Attempted murder - Sentence of six years imprisonment substituted for effective sentence of twenty one months imprisonment.

On appeal against inadequacy of sentence in circumstances where the respondent was convicted of attempted murder and sentenced to eighteen months imprisonment (after taking into account 3 months in custody pending trial), the evidence revealed that the respondent struck his victim a heavy blow to the back with a lethal instrument severely wounding him, and after waiting in ambush. It also appeared that the cause of the trouble was a land dispute (in the Enga Province), that the respondent was not a sophisticated man and the crime was committed in a traditional environment.

Held

N1>(1)����� The degree of sophistication of an offender and the traditional ways of the community from which the offender comes are relevant in arriving at an appropriate sentence; but to overemphasize considerations of this kind is to ignore the important role of the Court in upholding the law.

N1>(2)����� In the circumstances the sentence of eighteen months imprisonment (after taking into account 3 months in custody pending trial) was inadequate and insufficient and a sentence of six years imprisonment should be substituted.

Appeal

This was an appeal pursuant to s. 23 of the Supreme Court Act 1975, against sentence on the ground of inadequacy.

Counsel

B. T. J. Sharp, for the appellant.

G. C. Lalor, for the respondent.

Cur. adv. vult.

7 June 1977

FROST CJ PRENTICE DCJ WILLIAMS J: The respondent was, on 23rd October, 1976, at Wabag, convicted after trial of the attempted unlawful killing of one Beto Kipali.

There was a conflict between the account given by the State witnesses and that of the respondent.

The respondent�s version was that he discovered Beto Kipali and another man in the act of stealing his Koroka nuts. They tried to run away whereupon the respondent grabbed Beto Kipali and in an ensuing scuffle Beto picked up his axe and hit the respondent on the face with it. The respondent then grabbed his own axe and cut Beto with a light blow. Two defences were raised on behalf of the respondent, namely, provocation and self-defence.

The learned trial judge rejected the respondent�s version and accepted the account given by the State witnesses. This was to the effect that a dispute existed concerning the ownership of some Koroka nuts. Beto considered himself to be the owner of them and suspected the respondent of stealing nuts from his trees. He went to the scene with one Takai, a committee, and another man Tumu Tedep for the purpose of checking on the respondent�s suspected activities. They were engaged in cutting nuts when the respondent arrived. He discharged some arrows, one of which struck Tumu Tedep. Others fired at Beto missed. Takai told Beto to go off and report the matter to the police. Takai remained at the scene and Beto went off by one track and the respondent by another. Shortly afterwards Takai heard a noise and went to investigate. Some thirty to forty yards away he found Beto and the respondent grappling. He observed that Beto had a ��big cut�� on his shoulder blade. Beto�s evidence was that as he was going along the track the respondent was lying in ambush and struck him with an axe.

Upon the trial judge�s findings the respondent was the aggressor and the defences of provocation and self-defence failed. No appeal was made by the respondent against these findings and the matter comes before this Court at the instance of the Public Prosecutor who contends that the sentence imposed by the trial judge was, in the circumstances, inadequate and insufficient. The sentence imposed was imprisonment with hard labour for eighteen months. The respondent was in custody awaiting trial for about three months; thus the effective sentence was one of twenty-one months.

Medical evidence given at the trial showed that Beto received a wound in the back eight centimentres long which penetrated to a depth of about six to eight centimetres. The wound penetrated to within three centimetres of his heart and two centimetres of his aorta. The doctor�s opinion was that it would have required an extremely hard blow to cause the wound and that Beto was lucky to have survived. In the result he made a remarkable recovery and was discharged from hospital sixteen days later.

The trial judge found that the root cause of the trouble was a land dispute and stated that he had no doubt that the respondent believed that the nuts growing on the land were his property. The trial judge also stated that he had no doubt that the respondent was greatly angered by what he (the respondent) considered was the wrongful taking by Beto and his party of the nuts. His Honour also took into account that land and its products are very important in the eyes of the people of this country, that it would be a normal reaction of people of the Enga Province to react with violence in situations where it was considered that the rights in land were wrongly interfered with, and that as the respondent and his victim belong to the same lineage group, arrangements for compensation for the injury to Beto would be made. The latter consideration, in the view of the trial judge, meant that the need to deter payback action against the respondent should be discounted. The respondent was not a sophisticated man and the crime was committed in a traditional environment.

The crime of attempted killing is one which is viewed with gravity by the legislature in that it carries a maximum sentence of life imprisonment. In the experience of the members of this Court most crimes of violence in this country are carried out in circumstances (as in this case) where the offender is greatly angered by some event preceding the crime.

In practice this Court has always regarded the degree of sophistication of the offender and the traditional ways of the community from which he comes as important in arriving at an appropriate sentence. But to over-emphasize considerations of this kind is to ignore what we consider to be an important role of the Court in upholding the law as laid down by Parliament. The Parliament has seen fit to provide substantial penalties for crimes of violence, clearly to ensure that the people will come to learn that violence cannot be tolerated in any organized society and that those who offend will be dealt with sternly. Only in this way will the incidence of violence be reduced.

In the instant case the respondent struck his victim a heavy blow to the back with a lethal instrument. There was some element of premeditation in that, as was accepted by the trial judge, the respondent waited in ambush. That death did not ensue was a matter of sheer good fortune. In all the circumstances we consider that the sentence imposed was inadequate and insufficient and that a sentence of six years in hard labour should be substituted for that imposed by the trial judge.

Appeal allowed. Sentence of six years� imprisonment substituted for the resentence of the trial judge.

Solicitor for the appellant: K. B. Egan, Public Prosecutor.

Solicitor for the respondent: W. J. Andrew, Acting Public Solicitor.