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Lakuna v State [2020] PGSC 125; SC2035 (28 October 2020)

SC2035

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 107 OF 2017

BETWEEN:
WILLIAM LAKUNA
Applicant

AND:
THE STATE
Respondent

Kokopo: Hartshorn J, Yagi J and Makail J
2020: 27^th & 28^th October

SUPREME COURT REVIEW- Application for leave to review a sentence – s.155 (2) (b) Constitution - no cogent and convincing reasons, exceptional circumstances or clear legal grounds advanced by the applicant seeking leave – application for leave to review dismissed

Cases Cited:

Public Prosecutor v. Terrence Kaveku [1977] PNGLR 110
Avia Aihi v. The State (No. 2) [1982] PNGLR 44
Public Prosecutor v. Kerua [1985] PNGLR 85
Paul Mase v. The State [1991] PNGLR 88
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855
Emil Konigan v. State (2007) SC928
Application by John Maddison and Bank of South Pacific Ltd (2009) SC984 Alphonse Tay v. Newcombe Gerau (2011) SC1097
Benjamin Sengi v. The State (2015) SC1425
Sakai Saraga v. The State (2017) SC1592

Counsel:

Mr. L. Mamu, for the Applicant
Mr. P. Kaluwin, for the Respondent

28^th October, 2020

1. BY THE COURT: This is a decision on an application to review a sentence imposed for the crimes of incest. The applicant was sentenced to nine years six months imprisonment. Of that sentence, eight years was for two counts of incest, each of four years, to be served cumulatively. The applicant was convicted after a trial on four counts of indecent acts and two counts of incest.

2. The applicant’s notice of appeal was filed about two years eight months after the period prescribed by statute and so this court considers the notice of appeal as though it is an application 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 and Sakai Saraga v. The State (2017) SC1592.

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:

1. it is in the interests of justice to grant leave; and
   
2. 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 applicant submitted that leave should be granted as:

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

b) the trial judge fell into error which has caused substantial injustice to the applicant;

c) it is in the interests of justice that a manifest error should be corrected.

5. Counsel for the State submitted that although no reasonable reasons or explanations were advanced for this court to exercise its discretion to grant leave, it is in the interests of justice that leave be granted as the trial judge had fallen into error in his consideration of the sentence to be imposed in regard to the two counts of incest.

Interests of Justice

6. The notice of appeal was filed about two years six 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 applicant and that the applicant was not aware of his rights of appeal. 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 applicant. Similar comments were made by this Court in Saraga v. The State (supra) at [6].

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 applicant should be allowed to review a judicial decision because of such circumstances.

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

9. As to whether there are cogent and convincing reasons, exceptional circumstances and clear legal grounds which exist in this instance, as mentioned, the applicant and the State submitted that the trial judge fell into error in his consideration of the sentence to be imposed for the two counts of incest.

10. The error purportedly committed by the trial judge was that he sentenced the applicant to four years imprisonment on each of the two counts of incest, to be served cumulatively. This resulted in the applicant serving a sentence of eight years for incest when the maximum penalty for the crime of incest is imprisonment for a term not exceeding seven years. This is a breach of the totality principle it is submitted, as referred to in the Supreme Court decisions of Emil Konigan v. State (2007) SC928 and Public Prosecutor v. Kerua [1985] PNGLR 85, as the maximum sentence for the crime of incest has been exceeded.

11. When the decisions of Kerua (supra) and Konigan (supra) are considered, they are not authority for the proposition that if sentences of imprisonment are ordered to be served consecutively or cumulatively for similar crimes and the total of those sentences exceeds the maximum penalty for one count of that crime, then that is a breach of the totality principle. We are unable to consider two other cases of the Supreme Court which were cited on behalf of the applicant, as apparently they were delivered extempore and no copies were able to be provided to us.

12. Further, in the Supreme Court case of Paul Mase v. The State [1991] PNGLR 88, the majority of the Court said as to the totality rule:

“We do not consider that there is any hard and fast rule to be followed although it would be permissible for a sentence to take into account maximum penalties provided by law for each offence ....”

13. The totality principle is expressed in Kerua (supra) at 91 is:

“.... the totality rule or principle, is that when the sentencer has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. The court must look at the total sentence and see if it is just and appropriate for the totality of the criminal behaviour.”

14. In this instance, the trial judge imposed the sentence of four years for each of the two counts of incest. They were two separate crimes committed on the same person on different occasions and not in the course of a single transaction. The total of the two counts of four years imprisonment is eight years. For the totality of the criminal behaviour of incest, in our view the sentence of eight years imprisonment is just and appropriate. For the criminal behaviour including the indecent exposure sentences, the total is nine years six months. Again we are of the view that this total sentence is just and appropriate. These crimes are sexual offences by the applicant against and upon his daughters. The crimes of incest are particularly serious in our view given the daughter’s age. The total sentence of nine years six months, and for incest, a total sentence of eight years, cannot be considered to be excessive or crushing. The sentences in our view properly reflect the crimes committed and the overall circumstances which pertained.

15. We note that the trial judge considered the total sentence, having regard to the principles in the Supreme Court case of Public Prosecutor v. Terrence Kaveku [1977] PNGLR 110 and Mase (supra). The trial judge also considered other authorities dealing with sexual crimes. The trial judge found, correctly in our view, that the total sentence was not excessive.

16. We are not satisfied that the applicant has made out that the trial judge fell into error in his consideration and application of the principles concerning the total sentence imposed upon the applicant.

17. We mention further, that in our view, to consider a cumulative or consecutive sentence to be in breach of the totality rule if it exceeds the maximum penalty prescribed, in the context of sexual offences for which a relatively low maximum penalty is imposed, has the potential to subject an offender to a relatively low sentence of imprisonment, notwithstanding the number of counts of sexual offences which have been committed. To our minds, this would not be in the interests of justice or in particular, of a victim, as an offender would in effect, only be serving a sentence for one of a number of sexual offences and then regaining his liberty in a relatively short period of time.

18. Given the above, we are not satisfied that the applicant has satisfactorily made out that there are cogent and convincing reasons, exceptional circumstances or clear legal grounds such that his application for leave to review the sentence imposed upon him should be granted.

Orders

19. It is ordered that:

a) The application for leave to review sentence is dismissed;

b) The conviction and sentencing of the National Court is confirmed.
___________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent