SC1592

  PAPUA NEW GUINEA 
[IN THE SUPREME COURT OF JUSTICE] 

  SCRev 10, 11, 12 and 13 of 2015

BETWEEN:

SAKAI SARAGA, 
KAKE SARAGA, 
MIRAGA SARAGA 
and MARASA AUGA 
Applicants

AND:

THE STATE
Respondent

Waigani: Hartshorn, Polume Kiele and Pitpit JJ
        2016: June 27th,
     2017: May 5th 

SUPREME COURT – PRACTICE AND PROCEDURE - Application for leave to review sentence – s.155 (2) (b) Constitution

Cases cited:   

Application by John Maddison and Bank of South Pacific Ltd (2009) SC984 Alphonse Tay v. Newcombe Gerau (2011) SC1097
Application by Herman Leahy (2006) SC855 
Ben Wafia v. The State (2006) SC851
Benjamin Sengi v. The State (2015) SC1425
Manu Kovi v. The State (2005) SC789
William Norris v. The State [1979] PNGLR 605

Counsel:

Mr. J. Mesa and Mr. B. Geita, for the Applicants
Mr. T. Ai, for the Respondent

5th May, 2017

1. 	BY THE COURT: This is a decision on four applications to review sentences imposed for the crime of wilful murder. The four applicants, brothers, were each sentenced to 27 years imprisonment in hard labour. They each had pleaded guilty to wilfully murdering one Burama Mauka at Baramura Village, Western Province on 9th April 2012. 

2. 	The applicants’ notices of appeal were all filed about seven months after the period prescribed by statute and so this court considers them as though they are applications for leave to review under s. 155 (2)(b) Constitution:

Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Application by John Maddison and Bank of South Pacific Ltd (2009) SC984; Alphonse Tay v. Newcombe Gerau (2011) SC1097 and Benjamin Sengi v. The State (2015) SC1425.

3. 	Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (we refer to the cases cited above). 

These are:

a)	it is in the interests of justice to grant leave; and

b)	there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity; and

c)	there are clear legal grounds meriting a review of the decision.

4. 	Counsel for the applicants submitted that leave should be granted as:

a)	the reason for the delay in filing the notices of appeal was that no legal guidance was available and given to the applicants that their notices of appeal should be filed within 40 days;

b)	it is in the interests of justice as sorcery related crimes are sensitive matters in Papua New Guinea;

c)	the applicants have an arguable case as two matters: a genuine belief in sorcery and the existence of non legal provocation; were not adequately considered by the trial judge in sentencing.

5. 	Counsel for the State submitted that no reasonable reasons or explanations were advanced for this court to exercise its discretion to grant leave.

Interests of Justice

6. 	The notices of appeal were filed over seven months after the statutory prescribed period to appeal expired. The reason given for the delay is that, there was no legal guidance available or given to the applicants. There is no evidence of this. Further, in our view, given the numerous criminal appeals that have emanated over the years from persons detained in the various corrective institutions in Papua New Guinea, officers at those institutions and indeed other inmates, would be aware that the prescribed period within which an appeal must be lodged is 40 days. It is likely in our view, that this information would have been imparted to the applicants

7. 	Further, we note that in Application by John Maddison and Bank of South Pacific Ltd (supra), in refusing to grant leave to review under s. 155 (2) (b) Constitution, the Court considered a period of 9 months to be an inordinate and inexcusable delay.

8.	 In this instance, given the length of delay and the lack of evidence concerning the delay we are not of the view that it has been properly made out that it is in the interests of justice that the applicants should be allowed to review a judicial decision because of such circumstances.

9. 	As to it being in the interests of justice that leave be granted because the crimes that the applicants have committed are sorcery related and such crimes are considered sensitive in Papua New Guinea, why should an applicant be allowed to review a sentence in and because of such circumstances?
 
10. 	Assuming for present purposes, as there is no evidence of this, that the applicants did commit these crimes because of what they allege are their beliefs in sorcery, and that a crime committed because of such a belief is considered to be of a sensitive nature in Papua New Guinea, we are not persuaded that these circumstances justify such an applicant being treated differently and being permitted a significant period of extra time to question a sentence that has been imposed.

11.	 In our view, it is not in the interests of justice that an applicant be allowed leave to review a sentence because of a belief that he holds and because the manner in which he committed the crime may be considered to be of a particular nature.

Whether there are cogent and convincing reasons, exceptional circumstances and clear legal grounds

12. 	The applicants submit that the mitigating factors of belief in sorcery and non-legal provocation were not adequately considered by the trial judge. They submit that he almost discounted these factors. 

13. 	The State submits that the trial judge carefully considered the matters raised by the applicants in their allocutus, including their pleas of guilt, their cooperation with police and their remorse, the submission made by their counsel and sentences that have been imposed in other murder cases.

14. 	In the reasons of the trial judge, amongst others he makes reference to the probation report and the favourable reports about the applicants therein, the submissions of their counsel and also their exposure to civilization. Consideration is also given to their pleas of guilty, cooperation with police, that they are all first time offenders and their expressions of remorse. The trial judge also considers at length the crime of murder and the belief in sorcery, and comments that such belief is no longer appropriate and that it is wrong. He also states that the good points in favour of the applicants are substantially outweighed by the gravity of the crime and that sorcery in his view is not an excuse for reducing their sentences.

15. 	As to an appeal against sentence, the legal principles are well settled and were reiterated in the Supreme Court case of Ben Wafia v. The State (2006) SC851;

“A sentencing judge has a wide discretion. On an appeal against sentence the appellant must show that the sentencing judge has erred in the exercise of his discretion. Although there may be no identifiable error, if the sentence is out of all reasonable proportion to the crime there is an unidentifiable error: William Norris v The State [1979] PNGLR 605.”

16. 	When it is considered that the maximum penalty for the crimes to which the applicants pleaded guilty, wilful murder, is death, that the facts of this case place the severity of the crime committed within categories two and three of the guidelines set out in Manu Kovi v. The State (2005) SC789 which suggest a sentencing range of 20 to 30 years, and that the sentencing judge has a wide sentencing discretion at his disposal: William Norris v. The State [1979] PNGLR 605 and Ben Wafia (supra), we are satisfied that the trial judge was entitled to impose the sentence that he did and did not fall into error in so doing. Further, the sentences imposed are not out of all reasonable proportion to the crime committed.

17. 	Consequently, we are not satisfied that there are any cogent and convincing reasons, exceptional circumstances or clear legal grounds to justify the applicants being granted leave to review the sentences imposed upon them.

18. 	For the above reasons the applications of the applicants for leave to review their sentences are refused. The sentences imposed upon the applicants are confirmed.
___________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicants                      
Office of the Public Prosecutor: Lawyers for the Respondent