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Nasa v State [2013] PGNC 369; N5335 (21 August 2013)

N5335

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CA NO 45 0F 2012

ROBIN NASA
Appellant

V

THE STATE
Respondent

Madang: Cannings J
2013: 14, 21 August

CRIMINAL LAW – appeal to National Court against sentence imposed by District Court – Summary Offences Act, Section 20 (unlawfully on premises) – principles to apply in determination of appeals against sentence.

The District Court convicted the appellant under Section 20 of the Summary Offences Act of being unlawfully on premises and sentenced him to six months imprisonment. The appellant appealed against the sentence on four grounds: failure to take account of mitigating factors; placing undue weight on an earlier not guilty plea; taking into account irrelevant considerations; the sentence was manifestly excessive.

Held:

(1) Appeals to the National Court against sentences imposed by the District Court are determined in a similar way to appeals to the Supreme Court against sentences imposed by the National Court, subject to one additional requirement.

(2) Accordingly the appellant must show that the District Court either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was or is obviously (not merely arguably) excessive and that there has been a substantial miscarriage of justice.
(2)
(3) The first three grounds of appeal were dismissed as the appellant did not produce the reasons for decision of the District Court, so it was impossible to say whether any errors of the type alleged were made.

(4) The final ground was dismissed as although the appellant was a youthful offender whose human rights had been breached at the time of arrest, a prison term was an appropriate penalty given the circumstances of the offence and the sentence was only 25% of the maximum sentence of two years.

(5) The appeal was dismissed and the sentence of six months imprisonment confirmed.

Cases cited

The following cases are cited in the judgment:

Eddie Peter v The State SCRA No 75 of 2001, 03.11.06
Lawrence Hindemba v The State (1998) SC593
Public Prosecutor v Barry Holloway [1981] PNGLR 482
William Norris v The State [1979] PNGLR 605

APPEAL

This was an appeal against sentence.

Counsel

A Meten, for the Appellant
J Morog, for the Respondent

21^st August, 2013

1. CANNINGS J: Robin Nasa appeals against the sentence of six months imprisonment imposed on him by the Madang District Court (his Worship Mr B Amos presiding) upon his conviction (after pleading guilty) of one count of unlawfully being on premises contrary to Section 20 of the Summary Offences Act. He committed the offence at 4.30 am on Tuesday 20 August 2012. He was without lawful excuse on the veranda of a female students’ dormitory at Madang Teachers College, peeping inside. He appeals on four grounds:

1. failure to take account of mitigating factors;
2. placing undue weight on an earlier not guilty plea;
3. taking into account irrelevant considerations; and
4. the sentence was manifestly excessive.
   

APPEALS AGAINST DISTRICT COURT SENTENCES

2. Appeals to the National Court against sentences imposed by the District Court are determined in a similar way to appeals to the Supreme Court against sentences imposed by the National Court, subject to one additional requirement, Kapi J, as he then was, explained the principles in Public Prosecutor v Barry Holloway [1981] PNGLR 482, at pp 483-484:

An appeal against sentence from the District Court to the National Court is an appeal against the exercise of judicial discretion and should be determined by established principles. The principles to be applied here are the same principles that apply on appeal from the National Court to the Supreme Court. ... However it is important to bear in mind that an error in the exercise of judicial discretion by the District Court must amount to a substantial miscarriage of justice in order for the appeal to be allowed.

3. The leading case on the principles to apply in appeals on sentencing is Norris v The State [1979] PNGLR 605. As the Supreme Court explained in Eddie Peter v The State SCRA No 75 of 2001, 03.11.06, there are according to the Norris principles two types of questions to be addressed:

4. Question 1 – Has the trial judge or magistrate made an identifiable error which has the effect of vitiating (making invalid) the sentence? That is, has the trial judge or magistrate erred by, for example, making a mistake on the facts, applying a wrong law or taking account of an irrelevant consideration, failing to take account of a relevant consideration, clearly giving too much weight or too little weight to a relevant factor? If yes, the appeal court is entitled to quash the sentence and substitute it with the sentence which in its opinion is warranted in law and should have been passed. The new sentence can be more or less severe than the original sentence (Lawrence Hindemba v The State (1998) SC593).

5. Question 2 – Is the sentence obviously (not merely arguably) excessive (or lenient)? That is, even though no particular error by the trial judge or magistrate can be identified, is the sentence out of reasonable proportion to the circumstances of the crime? If yes, the appeal court is entitled to quash the sentence and substitute it with the sentence which in its opinion is warranted in law and should have been passed. If no, the trial judge or magistrate will have imposed a correct sentence. The appeal against sentence will be dismissed.

THE GROUNDS OF APPEAL

6. The first three grounds of appeal are addressed to the first leg of the Norris principles. It is argued that the learned sentencing Magistrate made three errors of law. All these grounds must fail as the appellant has not produced the judgment or reasons for decision of the District Court, so it is impossible to say whether any errors of the type alleged were made.

7. The final ground must also be dismissed. Although the appellant was a youthful offender (he was aged 18 when he committed the offence and when he was sentenced; he is now 19) whose human rights were breached at the time of arrest (there is evidence that he was assaulted by security guards at the time of his initial apprehension and then detained for three days without food at Jomba Police Lock-up), a prison term was, I consider, an appropriate penalty given the circumstances of the offence. Moreover, the sentence was only 25% of the maximum sentence of two years. It was not obviously excessive.

WHAT ORDERS SHOULD THE NATIONAL COURT MAKE?

8. As all grounds of appeal are dismissed, the appeal must fail. It is not necessary for an assessment to be made of whether there has been a substantial miscarriage of justice but for the record I state that in my opinion there has been none.

9. I will under Section 230(1)(c) (power of National Court on appeal) of the District Courts Act affirm the order appealed from. However, as it is not clear from the depositions that the appellant’s pre-sentence period in custody of three days was taken into account and as the appellant served two months, one week and four days in custody pursuant to the sentence before being granted bail pending determination of this appeal, and to avoid doubt as to the period in custody still to be served, I will revoke all previous warrants of commitment and replace them with a new warrant. Though the offender is above the age of a juvenile (18 years according to the Juvenile Courts Act 1991) I will order that he be detained in the juvenile compound of the nearest correctional institution at Beon.

ORDER

(1) The appeal is dismissed.

(2) The order of the District Court in DCR 543 of 2012 imposing a sentence of six months imprisonment is affirmed, subject to all previous warrants of commitment being revoked and replaced with a new warrant a new warrant of commitment, which shall be issued forthwith by the National Court, which shall show the period in custody served already to be two months and two weeks and require that the appellant be detained in the juvenile compound of Beon Correctional Institution.

Judgment accordingly.
_____________________________________
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent