SC1424

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 45 0F 2011

MICHAEL MIKORO
Appellant

V

THE STATE
Respondent

Waigani: Cannings J, Makail J, Kangwia J
2015: 27 April, 1 May

CRIMINAL LAW – sentencing – appeal against sentence of 20 years for murder, Criminal Code, Section 300(1)(a) – whether any identifiable error made by sentencing Judge – whether sentence manifestly excessive.

The appellant appealed on four grounds to the Supreme Court against the sentence of 20 years imprisonment imposed on him by the National Court following his conviction, after trial for one count of murder under Section 300(1)(a) of the Criminal Code. He argued that the sentence was excessive as: (a) the deceased had only sustained one wound, (b) he had been in remand for an excessive period prior to being convicted and sentenced, (c) there had been a peace and reconciliation ceremony with the deceased's family and (d) he had a wife and two children to care for.

Held:

(1)	In an appeal against sentence the appellant must show that the sentencing Judge 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).

(2)	None of the four grounds of appeal exposed any identifiable error by the sentencing Judge, in that: (a) the fact that the deceased sustained only one wound was not a mitigating factor given the severity of the wound to the head; (b) the full pre-sentence period that the appellant was in remand was taken into account and deducted from the head sentence; (c) the sentencing Judge took into account that there had been a peace and reconciliation ceremony and that some compensation was paid and gave those matters appropriate weight; (d) the sentencing Judge took into account the effect of the sentence on the welfare of the appellant's family and properly regarded it as a matter that deserved little weight in the exercise of the sentencing discretion.

(3)	The sentencing Judge properly had regard to the sentencing guidelines for murder in Manu Kovi v The State (2005) SC789, found that this was a case falling within category 2 of those guidelines and imposed a sentence in accordance with the sentencing range suggested. The sentence was not excessive, let alone manifestly excessive.

(4)	The appeal was dismissed and the sentence fixed by the National Court was affirmed.

Cases cited

The following cases are cited in the judgment:

Allan Peter Utieng v The State, SCR No 15 of 2000, 23.11.00, unreported
Ben Wafia v The State (2006) SC851
Eddie Peter v The State (2006) SC1340
Manu Kovi v The State (2005) SC789
The State v Donald Angavia (No 2) (2004) N2590
The State v Flotyne Sina (2004) N2082
The State v Lucas Yovura (2003) N2366
The State v Michael Mikoro CR No 388 of 2007, 28.09.11, unreported
William Norris v The State [1979] PNGLR 605

APPEAL

This was an appeal against a sentence of 20 years imprisonment for murder.

Counsel

M Mikoro, the appellant, in person
D Mark & H Roalakona for the respondent

1 May, 2015

1. BY THE COURT: Michael Mikoro appeals in person as a prisoner against the sentence of 20 years imprisonment imposed by the National Court following his conviction on one count of murder, contrary to Section 300(1)(a) of the Criminal Code.

2. He was convicted on 24 September 2009, after a trial at Kerema, of the murder of Tapita Ivara. The trial Judge, Yalo AJ, found that the offence was committed at Karama village, Malalaua District, Gulf Province, on 5 September 2006. The appellant was drunk when he committed the offence. Earlier that day the appellant had an altercation with another person, Yohi Poki, and armed himself with a bush-knife and went looking for that person. The appellant came across three men. He thought that one of them was Yohi Poki. He swung his bush-knife at that person, who was not Yohi Poki but an entirely innocent person with whom the offender had no grievance, the deceased, Tapita Ivara. He cut Mr Ivara severely on the left side of the skull, causing almost instant death. The trial Judge found that the appellant directly killed the deceased, intending to cause him grievous bodily harm. His Honour rejected the defence of mistake of fact and convicted him of murder, as charged.

3. The trial Judge's term of office expired soon after the date of conviction. After an application was made under Section 576(3) of the Criminal Code, the question of sentencing the appellant was dealt with by Justice Mogish (the sentencing Judge) at Waigani in September 2011. His Honour administered the allocutus and heard submissions from counsel.

4. His Honour emphasised that the deceased was a totally innocent man and the fact that the appellant did not intend to harm him (his intention being to do grievous bodily harm to another person) was irrelevant (The State v Michael Mikoro CR No 388 of 2007, 28.09.11, unreported). His Honour took into account that an offensive weapon was used to injure the victim on a vulnerable part of the body. The appellant acted deliberately and it was a vicious killing. His Honour considered that the case fell within category 2 of the sentencing guidelines given by the Supreme Court in Manu Kovi v The State (2005) SC789, attracting a sentence in the range of 16 to 20 years imprisonment.

5. His Honour, having taken account of the circumstances of the killing, the prevalence of the offence and the need for strong deterrence, imposed a head sentence of 20 years imprisonment. His Honour deducted from the head sentence the pre-sentence period in custody of 5 years, 3 weeks, 5 days and fixed the time to be served in custody as 14 years, 11 months and 2 days.

LEAVE TO APPEAL

6. At the commencement of hearing this appeal the Court discovered that leave to appeal pursuant to Section 22(d) of the Supreme Court Act had been neither sought nor granted. We allowed the appellant to make an oral application for leave, which he did. The respondent had no objection and having regard to the circumstances of the case and the interests of justice, the Court granted leave to appeal and heard the appeal.

GROUNDS OF APPEAL

7. The appellant argued that the sentence of 20 years was excessive and should be reduced. He relied on four grounds of appeal:

(a)	the deceased had only sustained one wound;

(b)	he had been in remand for an excessive period prior to being convicted and sentenced;

(c)	there had been a peace and reconciliation ceremony with the deceased's family; and

(d)	he had a wife and two children to care for.

APPROACH TO APPEALS AGAINST SENTENCE

8. In an appeal against sentence the appellant must show that the sentencing Judge either:

•	made an identifiable error that has the effect of vitiating the sentence; or

•	imposed a sentence that was obviously (not merely arguably) excessive.

See for example William Norris v The State [1979] PNGLR 605, Ben Wafia v The State (2006) SC851 and Eddie Peter v The State (2006) SC1340.

GROUND (a): DECEASED SUSTAINED ONLY ONE WOUND

9. This matter was taken into account by the sentencing Judge. His Honour, properly, did not regard it as a very significant fact. The fact that the deceased sustained only one wound was not a mitigating factor given the severity of the wound to the head. His Honour made no identifiable error. Ground (a) is dismissed.

GROUND (b): EXCESSIVE PERIOD IN REMAND

10. It is true that the appellant was remanded in custody for a long time being before being convicted and sentenced. However, this was not necessarily a matter that warranted a lesser sentence. His Honour had regard to the full pre-sentence period that the appellant was in remand and deducted that period from the head sentence. His Honour made no identifiable error. Ground (b) is dismissed.

GROUND (c): PEACE, RECONCILIATION AND COMPENSATION

11. The appellant submitted that his family paid compensation to the deceased's relatives and that this should have been taken into account as a mitigating factor. In fact, these matters were expressly considered by the sentencing Judge. His Honour took into account that there had been a peace and reconciliation ceremony and that some compensation was paid. His Honour stated:

As regards compensation, I note that K3,500.00, two pigs and store goods have been paid to the relatives of the deceased. Compensation is there to restore harmony between relatives of the offender and the victim. In homicide cases it should not be interpreted as a means to a lenient sentence. A life has been lost and no amount of compensation will restore that lost life.

12. We consider that compensation whether paid or ordered in relation to a criminal offence is not a substitute for any prescribed penalty as compensation does not pay for an offence committed. It operates as a mitigating factor for consideration at the discretion of the court. We agree with the sentencing Judge's position on this issue. His Honour made no identifiable error. Ground (c) is dismissed.

GROUND (d): WELFARE OF FAMILY

13. The appellant submitted that the sentencing Judge erred by not taking into account the effect of the sentence on the welfare of his family. In fact his Honour did take this matter into account but concluded, properly in our view, as a matter that deserved little weight.

14. It is useful to restate what the Supreme Court observed in the case of Allan Peter Utieng v The State, SCR 15 of 2000, unreported:

An offender should consider his background first before committing any offence. Implicit in that was the fact that it is a little too late to talk about an offenders personal background including the needs of his family once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

15. Those observations have been followed in numerous National Court decisions, for example The State v Lucas Yovura (2003) N2366, The State v Donald Angavia (No 2) (2004) N2590 and The State v Flotyne Sina (2004) N2082). Whatever befalls the welfare of family members of a prisoner during his incarceration are a consequence of the prisoner's own actions or inactions that led to the commission of an offence. The issue of family welfare is not necessarily a good ground upon which a sentence may be reduced or mitigated. His Honour made no identifiable error. Ground (d) is dismissed.

WAS THE SENTENCE MANIFESTLY EXCESSIVE?

16. The appellant did not expressly include in his grounds of appeal the argument that the sentence of 20 years was excessive; but that is the theme underlying his oral submissions and we have decided to consider the point as if it were a ground of appeal.

17. We find that the sentencing Judge properly had regard to the sentencing guidelines for murder in Manu Kovi v The State (2005) SC789, which are summarised in the following table.

SENTENCING GUIDELINES FOR MURDER: KOVI'S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years	
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment	

18. We consider that this was a case with mitigating as well as aggravating factors, a weapon was used and there was a strong element of viciousness. It lay within his Honour's sentencing discretion to regard it as a category 2 case; though, actually, it could have been dealt with as a category 3 case especially in view of the fact that conviction followed a trial. It was at least a category 2 case. It is unremarkable that his Honour imposed a sentence of 20 years. The sentence is not excessive, let alone manifestly excessive.

ORDER

19. None of the appellant's grounds of appeal have succeeded. The learned sentencing Judge made no identifiable error of law and the sentence of 20 years imprisonment was not excessive. We therefore make the following order:

(1)	The appeal is dismissed.

(2)	The sentence imposed by the National Court is affirmed.

Judgment accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the Respondent