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Terry v Independent State of Papua New Guinea [2014] PGSC 45; SC1399 (30 October 2014)

SC1399

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCRA NO 16 of 2011

JUNIOR TERRY
Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Lae: Hartshorn, Kariko and Kangwia, JJ
2014: 29th, 30th October

Case cited:

William Norris vs. The State [1979] PNGLR 605
Ben Wafia vs. The State (2006) SC 851
Manu Kovi vs. The State (2005) SC 789

Counsel:

Appellant in person
R. Auka, for the State

1. BY THE COURT: Junior Terry appeals in person against his sentence of 25 years that the National Court in Bulolo imposed on 9 June 2011. He was indicted on one count of Murder under s.300 (1)(a) of the Criminal Code over the death of one James Niara.

2. The brief facts before the Trial Judge are these:

On the night of 29 August 2008 at Bulolo the deceased and his friends were consuming alcohol when the appellant and his friends started a fight with them. They were chased towards Biwat Compound by the deceased and his friends.

As the deceased and his friends were returning, the appellant and others took a short cut and confronted them.

3. The deceased was tackled to the ground and while he was on the ground the Appellant struck him on the head with an axe and ran away. The deceased was taken to the hospital with 2 deep wounds to the head and the wounds fractured his skull. He died two days later.

4. The appellant did not deny killing James Niara but raised a defence of self defence and a trial was conducted. The trial Judge found the defence not established to the required standard and convicted the appellant.

5. Only two grounds of appeal were advanced. Having heard the submissions from both parties, we dealt with the grounds as follows:

6. In the first ground the appellant alleged that the Trial Judge failed to take into consideration in sentence the compensation of K10, 000 that his relatives paid to the deceased relatives through mediation settlement.

7. It was the appellant's submission that the Trial Judge should have given him a lesser sentence considering that K10, 000 compensation was paid to the deceased relatives.

8. Mr. Auka for the State countered that the Trial Judge did consider the compensation paid and did not fall into error in the final sentence handed down. He referred the Court to the Trial Judges comments on page 70 paragraph 1 of the appeal book.

9. On the first ground we accept Mr. Auka's rebuttal that the Trial Judge did consider the issue of compensation in his pronouncement of sentence which appears on page 70 paragraphs 1 of the Appeal Book in the following way;

"In relation to the case itself, it is good that you have expressed remorse. You are sorry for what you did and your tribal or your ethnic group has paid compensation to the relatives of the deceased in the sum of K10, 000. I know that K10, 000 did not come from you so because of your problem, they were made poorer, K10, 000 poorer when they had to look for the money to pay for compensation.

So in some ways, it is good for you; in some ways as well, it is still not good for you that you caused your relatives to be K10, 000 poorer."

10. We add that compensation whether paid or ordered in relation to a Criminal offence is not a substitute for any prescribed penalty. Compensation does not pay for a crime committed. It operates only as a mitigating factor for consideration at the discretion of a Sentencing Court.

11. The Supreme Court has determined that a Sentencing Judge or Court has a wide sentencing discretion at its disposal. (See Wiliam Norris vs. The State [1979] PNGLR 605 and Ben Wafia vs. The State (2006) SC 851).

12. After hearing submissions of the appellant and Mr. Auka and noting the comments of the Trial Judge in Sentencing in the transcripts we are satisfied that the Trial Judge appropriately addressed the issue of compensation when he arrived at the sentence imposed.

13. We find no merit in this ground of appeal and dismiss it.

14. The second ground alleged that the Trial Judge did not take into account his admission to causing the death of the deceased. The appellant submitted that he should have been given a lesser sentence because of his admission.

15. Mr. Auka in submission highlighted that the appellant pleaded not guilty after a defence was raised and a trial was conducted. The admissions made were in the course of the trial.

16. It was further submitted that the Trial Judge considered the sentence range suggested by the Supreme Court for Murder to be between 20 and 30 years and in light of the aggravating features present the 25 years imposed was within range and appropriate in the circumstances of this case.

17. On this ground we reiterate that the Trial Judge has a wide sentencing discretion. It is generally accepted in sentencing that an offender who pleads guilty early would be entitled to a discount for saving time and expenses of conducting a trial. It only operates through the exercise of the sentencing discretion a Trial Judge has.

18. The appellant's admission to causing the death was implicit in his legal defence that went to trial. The appellant did not plead guilty early hence a discount would not be available to him.

19. The maximum prescribed penalty for Murder under s.300 (1)(a) of the Criminal Code Act is life imprisonment. The Supreme Court in Manu Kovi vs. the State (2005) SC 789 has suggested guidelines for Murder cases as well.
The Trial Judge found that the present case fell into Category three which suggested a Sentence range of 20 to 30 years and in the exercise of his discretion determined that 25 years fitted the crime.

20. We are not satisfied that the trial Judge fell into error in arriving at the 25 year sentence imposed. This ground must also be dismissed.

21. The principle of law governing an appeal against sentence as expressed in William Norris vs. The State [1979] PNGLR 605 is that;

"...the appellant has the onus of showing to this court that the Trial Judge has made an error in Law or fact, which has the effect of vitiating the Trial Judge's discretion on Sentence."

22. The appellant in this case has not met that requirement. We find no basis to disturb the Trial Judge's exercise of sentencing discretion.

23. We therefore dismiss the appeal.
__________________________________________________________________
The Appellant In person
Public Prosecutor: Lawyers for the Respondent