SC1983
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 17 OF 2015

GIDEON NITA
Appellant

V

THE STATE
Respondent

Waigani: Cannings J, Polume-Kiele J, Anis J
2020: 28th July, 7th August

CRIMINAL LAW – sentencing – appeal against sentence of 30 years imprisonment for murder, upon guilty plea – whether any identifiable error made by sentencing Judge. 

The appellant sought and was granted leave to appeal against a sentence of 30 years imprisonment imposed on him by the National Court following his conviction, after pleading guilty, of one count of murder under s 300(1)(a) of the Criminal Code. The appellant argued that the sentencing judge made two identifiable errors by (1) failing to give any, or insufficient, weight to the absence of any prior conviction as a mitigating factor; and (2) failing to give any, or insufficient, weight to the plea of guilty as a mitigating factor.

Held:

(1)	The sentencing judge mentioned, as to the appellant’s antecedents, only that it was the appellant’s “first time to be in court”. He did not state that the absence of prior convictions was taken into account as a mitigating factor. The reasonable inference is that it was given no or little weight. This was an identifiable error vitiating the sentence.

(2)	As to the guilty plea, his Honour stated only that he was “happy” that the appellant pleaded guilty as “that has saved the Court a lot of time”. He did not state that the guilty plea was taken into account as a mitigating factor. The reasonable inference is that it was given no or little weight. This was an identifiable error vitiating the sentence.

(3)	In view of the absence of reasons for the sentence and the two identifiable errors and the appearance that the Judge sentenced the appellant at the top of the available range, thereby disregarding all mitigating factors, it was evident that there had been a substantial miscarriage of justice, warranting invocation of s 23(4) of the Supreme Court Act and imposition of a less severe sentence.

(4)	The Supreme Court upheld the appeal, quashed the sentence of 30 years and substituted it with a sentence of 18 years imprisonment. 

Cases Cited

The following cases are cited in the judgment:

Ben Wafia v The State (2006) SC851
Eddie Peter v The State (2006) SC1316
Manu Kovi v The State (2005) SC789
William Norris v The State [1979] PNGLR 605

APPEAL 

This was an appeal against a sentence of 30 years imprisonment for murder.

Counsel

F J Unua, for the Appellant
S Osembo, for the Respondent

7th August, 2020

1.      BY THE COURT: Gideon Nita appeals against the sentence of 30 years imprisonment imposed by the National Court following his conviction, after pleading guilty, on one count of murder. 

2.     He was indicted on a charge of murder, together with seven other persons, for the murder of Jason Yapinok, allegedly committed on 13 September 2013 at Bultem village, in the Tabubil area of Western Province. He was the only member of the group of eight accused to plead guilty. The other seven pleaded not guilty and were tried separately.

3.     The appellant pleaded guilty to hitting the deceased, who had been accused of killing Terry Milim by sorcery, with a heavy, dry piece of wood. Terry Milim was the appellant’s father-in-law. The appellant continued to hit the deceased on the head and on other parts of the body while he was on the ground, rendering the deceased unconscious. The appellant then dragged the deceased by the legs in the direction of the haus krai for Terry Milim, eventually dumping the deceased in the middle of a road near the haus krai. The deceased was still alive at that stage. Bystanders came to his aid and he was rushed to Tabubil Hospital, where he died several hours later.

4.     The appellant was convicted on those facts of one count of murder, contrary to s 300(1)(a) of the Criminal Code, on the basis that he unlawfully killed Jason Yapinok, intending to cause him grievous bodily harm. 

5.    The appellant was arraigned and pleaded guilty on 10 July 2015. Submissions on sentence were made on 20 July 2015. The sentence was delivered through a brief, oral decision on 21 July 2015.

THE DECISION ON SENTENCE

6.     The sentencing Judge, Justice Manuhu, stated:

Gideon Nita, stand up, please. The court has found you guilty for the murder of Jason Yapinok, that was on 13 September 2013.  In your statement to the police you admitted to hitting Jason. You hit Jason on the head with a stick and he became unconscious and he collapsed onto the ground. He was rushed to the hospital and died in the hospital. The medical report shows that he died from serious head injuries, that is from the stick that you used to hit him on the head.  

It is obvious that you became upset because you believed that he killed Terry Milim through sorcery. And Terry Milim is your father in-law. Terry Milim’s body was found on the same day Jason was killed.

What I want to tell you and I want you to remember is that all of you were stupid.  You were stupid because you should not have acted on your belief in sorcery.  

The role of the court is to make decisions and we hope that those decisions will change people’s lives and it is the desire of the court to stop people from acting on the basis of sorcery. Sorcery should not be the reason to do something bad.  

I will just give you an example about not acting bad on sorcery.  See, when my father died, we believed that he was killed through sorcery but we did not harm anybody. When my sister died, we also blamed sorcery but we did not harm anybody. That is the way Papua New Guineans should be behaving because our country would not be better if we continue to hurt each other.

So in this case, the medical report clearly shows that Terry Milim died as a result of actual gunshot wound. Your belief was totally wrong. You have taken the life of an innocent man, a man who knows nothing about why he was killed. And when you killed him, you did not give him any chance to defend himself.  You are from Wabag, you have been to school and you are an SDA man and you should understand what I am saying. It is not good to act on the suspicion of sorcery.

 I am happy that you have pleaded guilty and that has saved the court a lot of time. This is your first time to be in court. You cooperated with the police.  You have your own family to look after. You were employed at the time of the offence and you were a married man. But having said that, as I have said, the offence you committed is very serious. The penalty for it is life imprisonment and I repeat that an innocent man’s life was taken just like that.

I want to also remind you that on the spiritual side, sorcery is the devil’s way of deceiving people and at the end of it, there is no happiness to anybody. Like in this case, Jason is dead and you are going to jail. That is the work of the devil. And the people of Bultem will try to live with and get used to this. As I said earlier, you are an SDA man so you should understand what I am saying.

I think the court should send a strong message to the people of Bultem and anyone else that we should stop acting in this way.  We should not kill one another.  I must repeat that Terry Milim died as a result of actual gunshot wound and Jason was killed for nothing. So, a strong message is needed for everybody and this message will be sent through the kind of sentence I will give you.  

So, your sentence therefore is 30 years in hard labour. I will take away one year, 10 months and one week you spent in custody. You have 28 years, one month and three weeks to go.  All right, thank you.

LEAVE TO APPEAL

7.     On 4 March 2016 Justice Higgins, sitting as a single Judge of the Supreme Court, granted leave to appeal.

GROUNDS OF APPEAL

8.     The appellant argues that the sentencing judge made two identifiable errors by:

(1) failing to give any, or insufficient, weight to the absence of any prior conviction as a mitigating factor; and 

(2) failing to give any, or insufficient, weight to the plea of guilty as a mitigating factor.

APPROACH TO APPEALS AGAINST SENTENCE

9.      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) SC1316.

GROUND (1): FAILING TO GIVE WEIGHT TO ABSENCE OF PRIOR CONVICTIONS 

10.     Before determining this ground of appeal, we must observe, with respect, that the sentencing Judge did not give any actual reasons for arriving at the sentence of 30 years imprisonment. His Honour did not refer to any Supreme Court sentencing guidelines or any National Court precedent and did not indicate expressly the aggravating or mitigating circumstances of the offence. 

11.     The only indication of how the sentence of 30 years might have been fixed is his Honour’s tacit acceptance of the State’s contention, made by the prosecutor, Mr Mark, in submissions, on the day prior to sentence, that it was a category 3 case under the Supreme Court sentencing guidelines in Manu Kovi v The State(2005) SC789, in which case the starting point should be in the range of 20 to 30 years imprisonment.  Those guidelines can be summarised as follows: 

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	

12.      We consider that this was a case of a vicious attack, a weapon was used and the mitigating factors were rendered less significant by the gravity of the offence. It lay within his Honour’s sentencing discretion to regard it as a category 3 case, in which case the starting point for sentencing would be in the range of 20 to 30 years imprisonment. 

13.     However, as to the appellant’s antecedents – the absence of prior convictions – his Honour’s only comment was that it was the appellant’s “first time to be in court”. His Honour did not state that the absence of prior convictions was taken into account as a mitigating factor. The reasonable inference is that it was given no or little weight. This was an identifiable error vitiating the sentence. We uphold ground of appeal (1). 

GROUND (2): FAILING TO GIVE WEIGHT TO GUILTY PLEA 

14.     As to the guilty plea, his Honour stated only that he was “happy” that the appellant pleaded guilty as “that has saved the Court a lot of time”. His Honour did not state that the guilty plea was taken into account as a mitigating factor. The reasonable inference is that it was given no or little weight. With respect, the learned sentencing Judge appears to have been distracted by the perceived need to counsel the appellant as to the error of his ways in holding a belief in sorcery, including interpolating into the judgment on sentence his own family’s experiences regarding sorcery allegations. His Honour appears to have lost focus on the critical factor that the appellant had pleaded guilty. This was an identifiable error vitiating the sentence. We uphold ground of appeal (2).

CONSEQUENCE OF UPHOLDING GROUNDS OF APPEAL  

15.     In view of the absence of reasons for the sentence and the two identifiable errors and the appearance that the Judge sentenced the appellant at the top of the available range, thereby disregarding all mitigating factors, it is evident that there has been a substantial miscarriage of justice. This warrants the invocation of s23(4) of the Supreme Court Act and imposition of a less severe sentence.

16.     Section 23(4) of the Supreme Court Act states:

On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

17.     In our opinion a less severe sentence is warranted in law and should have been passed. We consider that in view of the absence of prior convictions and especially the guilty plea, the sentence should be at least at the bottom of the available range: 20 years. In fact, we consider that there is another mitigating factor that his Honour did not take into account, which was not included in the grounds of appeal, but which we consider should now be taken into account: the appellant was the only member of the group of eight accused to plead guilty. He should be given extra credit for that and given a sentence a little below the starting point range. 

18.     We will quash the sentence of 30 years imprisonment and pass in substitution for it, a sentence of 18 years imprisonment.

ORDER

(1)	The appeal against the sentence passed by the National Court in CR No 245 of 2014 at Tabubil on 21 July 2015 is upheld.

(2)	The sentence passed by the National Court is quashed and substituted by the sentence of 18 years imprisonment.

(3)	The warrant of commitment issued by the National Court shall be revoked and substituted by a fresh warrant of commitment, which shall take effect from 21 July 2015, setting out the details of the sentence as follows:

Length of sentence imposed	18 years	
Pre-sentence period to be deducted	1 year, 10 months, 1 week	
Resultant length of sentence to be served	16 years, 1 month, 3 weeks	
Amount of sentence suspended	Nil	
Time to be served in custody	16 years, 1 month, 3 weeks	

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