SC1819

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV No. 42 of 2018

MATHIAS EUGENE

V

THE STATE

Waigani: Salika CJ, Berrigan and Miviri, JJ
2019: 25 and 27 June

SUPREME COURT – PRACTICE AND PROCEDURE – Application for leave to review sentence – Section 155(2)(b) of the Constitution – no cogent and convincing reasons, exceptional circumstances or clear legal grounds – application refused.

Cases Cited:

William Norris v The State [1979] PNGLR 605
Avia Aihi v The State [1981] PNGLR 81
Manu Kovi v The State (2005) SC789
Mark Bob v The State (2005) SC 808 

References cited

Section 155(2)(b) of the Constitution. 
Section 302 of the Criminal Code (Ch. 262) (the Criminal Code) 

Counsel

Applicant in Person
Mr P. Kaluwin, Public Prosecutor, for the State

DECISION ON APPLICATION

27 June, 2019

1.	BY THE COURT: The applicant seeks review of the sentence of 13 years’ imprisonment imposed on him by the National Court on 22 March 2018 following his conviction on one count of manslaughter, contrary to Section 302 of the Criminal Code (Ch. 262) (the Criminal Code).  

2.	The applicant pleaded guilty to the following agreed facts.  On 22 June 2017, between 3 am and 4 am, the applicant was at the Goilala Block, Kuriva, along the Hirtano Highway, in Central Province.  His wife, the deceased, was asleep in their family home when the offender came to the house.  He was heavily intoxicated and violent.  He punched and kicked the deceased on her face and head.  When his parents who were in the house came and tried to stop him, he did not listen. He continued assaulting the deceased and she fell from the stairs and fractured her jaw.  The applicant then took the deceased into their house.  She was bleeding from her mouth, eyes and ears.  She later died as a result of this violent assault.

Leave to Review  

3.	The applicant failed to file a notice of appeal within 40 days of his sentence.  His notice of appeal was filed on 7 May 2018, 6 days after the prescribed time.  

4.	Consequently he applies for leave to review the decision on sentence pursuant to Section 155(2)(b) of the Constitution. The Court heard both the application for leave and the substantive application for review.

5.	It is well established that in determining whether to grant leave for review, three criteria must be satisfied:

(a)	it is in the interests of justice to grant leave; 
(b)	there are cogent and convincing reasons and exceptional circumstances, e.g. 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.
6.	In deciding whether there are cogent and convincing reasons, the following matters are relevant:
(a) the reasons for failing to appeal within time; and
(b) the merits of the case sought to be argued.

Mark Bob v The State (2005) SC 808 applying Avia Aihi v The State [1981] PNGLR 81; Danny Sunu v The State [1984] PNGLR 305.

7.	The merits of the application are considered below.

Merits of the Application  
8.	The applicant’s notice of appeal contains one (1) ground, namely that the sentence of 13 years’ imprisonment was harsh and oppressive as the mitigating factors far outweighed those in aggravation.

9.	It is well established in this jurisdiction that an appellate court will not readily disturb the discretionary power of a sentencing judge.  For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence.  Such an error may be identifiable: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where the sentence is obviously (and not merely arguably) out of all reasonable proportion to the circumstances of the case:  William Norris v The State [1979] PNGLR 605 at 612 to 613.

10.	The learned trial judge in this case provided detailed reasons on sentence.  He correctly identified the matters in mitigation, including that the applicant had no prior conviction, had pleaded guilty at an early stage, expressed remorse and provided compensation of K6000 and a pig to the deceased’s family.  Nothing more can be said in mitigation.

11.	The learned trial judge also had regard to the aggravating factors in this case. It is worth repeating them here.  The applicant deliberately assaulted the deceased whilst she was sleeping inside their family home.  She was unaware of what was going to happen to her, and completely defenceless when she was assaulted, punched and kicked on various parts of her body in a violent, vicious and sustained manner.  According to the medical evidence, she sustained multiple bruising all over her body, including the face which was grossly swollen.  She also sustained multiple fractures to the jaw, bleeding at the base of the brain and extensive haemorrhaging of the scalp.  There were at least five (5) sets of teeth marks on her left hand, left arm, and on her neck and right buttock. The learned trial judge also correctly found in aggravation that the offence was a serious case of domestic violence, a prevalent offence, calling for a strong deterrent sentence.

12.	There was no error on the part of the trial judge.  The aggravating factors in this case far outweighed those in mitigation.  As he observed, the compensation paid, apart from restoring peace and harmony to the community, has no significance to the deceased.  It cannot restore her life.   

13.	Ground 1 is dismissed.

Manifestly Excessive 

14.	Whilst not expressly articulated in the applicant’s grounds of appeal, his argument is essentially that the sentence of 13 years’ imprisonment was excessive.

15.	As found by the learned trial judge, the assault was vicious, sustained and committed with a deliberate intention to harm a defenceless woman in her own home, by her own husband. 

16.	Considering that the maximum penalty for the crime to which the applicant pleaded guilty, manslaughter, is life, and that the facts of this case place the severity of the crime committed within category two of the guidelines set out in Manu Kovi v The State (2005) SC789, which suggest a sentencing range of 13 to 16 years, and that the sentencing judge has a wide discretion at his disposal, we are satisfied that the sentence imposed is not out of all reasonable proportion to the crime committed.  Indeed, it is our view that the applicant might well have found himself serving a term at the higher end of the range in all the circumstances.  

Conclusion 

17.	In conclusion, we are not satisfied that there are any cogent and convincing reasons, exceptional circumstances or clear legal grounds to justify the applicant being granted leave to review the sentence imposed upon him.  Nor is it in the interests of justice.

18.	The application for leave to review is refused and the sentence imposed confirmed.
________________________________________________________________
Appellant in Person
Public Prosecutor:   Lawyer for the Respondent