N5835

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CA NO 33 0F 2014

JOSEPH SARUFA
Appellant

V

THE STATE
Respondent

Madang: Cannings J
2014: 4, 11 December

CRIMINAL LAW – appeal to National Court against sentence imposed by District Court – Summary Offences Act, Section 12 (carrying weapons) – principles to apply in determination of appeals against sentence

The District Court convicted the appellant under Section 12(1)(b) of the Summary Offences Act of having an offensive weapon (a home-made gun) in his possession, without reasonable excuse. The appellant appealed against the sentence on three grounds: failure to take account of mitigating factors; 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. 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)	The first two grounds of appeal were dismissed as there were no identifiable errors, in that the mitigating matters of the guilty plea and the appellant having no prior convictions were taken into account and the appellant failed to elucidate the allegedly irrelevant matters taken into account.

(3)	The third ground of appeal was upheld as the sentence was manifestly excessive given that the sentence of four years was 80% of the maximum and did not adequately reflect the guilty plea and the lack of prior conviction and the age of the offender.

(4)	There was a substantial miscarriage of justice. Therefore the appeal was upheld and the sentence of four years quashed and replaced by sentence of two years, six months (being 50% of the maximum).

Cases cited

The following cases are cited in the judgment:

Eddie Peter v The State (2006) SC1340
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
F K Popeu, for the respondent

11th December, 2014

1. CANNINGS J: Joseph Sarufa appeals against the sentence of four years imprisonment imposed on him by the Madang District Court (his Worship Mr R Teko presiding). He was convicted, after pleading guilty, of one count of having an offensive weapon (a home-made gun) in his possession, without reasonable excuse contrary to Section 12(1)(b) of the Summary Offences Act. He committed the offence at 4.00 am on 31 March 2014 at Newtown in Madang town. He was under the influence of liquor and threatened to shoot members of his own family with the gun and he evaded arrest by the Police. He appeals on three grounds:

1	failure to take account of mitigating factors;
2	taking into account irrelevant considerations; and
3	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. 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 obviously (not merely arguably) excessive (William Norris v The State [1979] PNGLR 605, Eddie Peter v The State (2006) SC1340). And there is one additional requirement: it must be established that there has been a substantial miscarriage of justice (Public Prosecutor v Barry Holloway [1981] PNGLR 482).

GROUND 1: FAILURE TO TAKE ACCOUNT OF MITIGATING MATTERS

3. In the notice of appeal it is alleged that the trial Magistrate failed to take into account (a) that the appellant pleaded guilty and (b) that he was a first time offender and (c) the circumstances in which the appellant was in possession of the offensive weapon. Mrs Meten for the appellant submitted that these were identifiable errors that warranted the sentence being quashed.

4. I agree that (a) and (b) are mitigating factors but I cannot find that they were not taken into account. They are referred to in the Magistrate's sentencing notes and they were specifically highlighted by the appellant in his allocutus. I find that they were taken into account. Mrs Meten did not elucidate the extenuating circumstances alluded to in (c). Therefore ground 1 is dismissed.

GROUND 2: TAKING INTO ACCOUNT IRRELEVANT CONSIDERATIONS

5. This is another barren argument as no allegedly irrelevant considerations have been identified in the notice of appeal or in submissions. Ground 2 is dismissed.

GROUND 3: SENTENCE WAS MANIFESTLY EXCESSIVE

6. An appellant who argues that a sentence is manifestly excessive must demonstrate that even though no identifiable error on the part of the sentencing judge or magistrate can be shown, upon the proven facts and making the fullest allowance for the advantaged position of the primary judge or magistrate, the sentence is obviously – not merely arguably – excessive. The rationale for this way of challenging a sentence was explained by Kearney J in Norris: although no identifiable error can be shown, if the sentence is out of reasonable proportion to the circumstances of the crime the appellate Court will infer that some error must have occurred in the exercise of the sentencing discretion.

7. Mrs Meten submitted that the sentence was obviously excessive as the appellant was given the maximum sentence of four years, even though he pleaded guilty and was a first-time offender. In fact, as Mr Popeu for the State pointed out, he was not given the maximum. Section 12(1) of the Summary Offences Act states:

A person who without reasonable excuse—

(a)	carries; or
(b)	has in his possession, custody or control,

any offensive weapon is guilty of an offence.

Penalty: A fine not exceeding K2,000.00 or imprisonment for a term not exceeding five years.

8. The maximum penalty was a K2,000.00 fine or a prison term of five years. The appellant was given four years, which is 80% of the maximum. Despite the error in Mrs Meten's submission, I nevertheless find merit in it. The offender was young (I estimate that he was aged 20 at the time of sentence), first-time offender and he pleaded guilty. It was a very early guilty plea as he was convicted and sentenced only eight days after commission of the offence. He appears not to have been legally represented. When all these things are taken into account, imposing a prison term which is 80% of the maximum is harsh. The sentence is obviously and manifestly excessive. Ground 3 is upheld.

WHAT ORDERS SHOULD THE NATIONAL COURT MAKE?

9. Two grounds of appeal have been dismissed but the one that has been upheld is a very significant one and I am satisfied, for the purposes of Section 230(2) of the District Courts Act, that a substantial miscarriage of justice has occurred. Section 230 (power of National Court on appeal) states:

(1)	On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a)	adjourn the hearing from time to time; and
(b)	mitigate or increase a penalty or fine; and
(c)	affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d)	remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e)	exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f)	make such further or other order as to costs or otherwise as the case requires.

(2)	An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

10. I will allow the appeal and under Section 230(1)(c) quash the sentence of four years and substitute it with what a more appropriate sentence, which will reflect the guilty plea, the lack of prior convictions and the youthful age of the appellant. The new sentence will be 50% of the maximum: a term of two years, six months. I see no justification for suspending any part of the sentence. I note that there appears to have been no deduction made for the period the appellant spent in custody prior to conviction, so I will issue a new warrant of commitment, calculated from today, which will take into account that he has been in custody for an unbroken period since 31 March 2014.

ORDER

(1)	The appeal is upheld.

(2)	The order of the District Court in DCR 326 of 2014 of 8 April 2014 imposing a sentence of four years imprisonment and the warrant of commitment issued pursuant to that order are quashed and substituted by an order, sentence and warrant of commitment, dated today, in the following terms:

Length of sentence imposed	2 years, 6 months	
Pre-sentence period to be deducted	8 months, 1 week, 4 days	
Resultant length of sentence to be served	1 year, 9 months, 2 weeks, 3 days	
Amount of sentence suspended	Nil	
Time to be served in custody	1 year, 9 months, 2 weeks, 3 days	
Place of custody	Beon Correctional Institution	

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