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Kande v State [2022] PGSC 132; SC2327 (12 December 2022)

SC2327

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NOS. 36, 37 & 38 OF 2021

TONY KANDE, HENRY NAIO & WILSON MUKA

Appellants

-V-

THE STATE

Respondent

Waigani: Kariko J, Murray J & Kaumi J

2022: 26^th October & 12^th December

CRIMINAL LAW – appeal – notice of appeal – grounds of appeal to be stated briefly and specifically, O7 r 9 (c) & 10 Supreme Court Rules – not sufficient for ground to state charge not proved

CRIMINAL LAW – appeal against convictions – s 23(1)(a) Supreme Court Act – attempt to obstruct the course of justice - s 136 Criminal Code – whether evidence proved the requisite intent to obstruct

CRIMINAL LAW – appeal against sentences – s 22(d) Criminal Code – whether mitigation factors properly considered – whether sentences are a quantum leap

The appellants were charged together for four offences including attempt to obstruct the course of justice pursuant to s 136 Criminal Code. They pleaded not guilty to the charges and were tried, convicted only of the charge under s 136. Two of the appellants were sentenced to two (2) years imprisonment while the other received an eighteen (18) months imprisonment term. They appealed both their convictions and sentences.

Held:

1. Pursuant to O7 r 9(c) & r 10 Supreme Court Rules, the appellants must specify with particularity the grounds relied to demonstrate why the appealed judgment, in this case on the convictions, is alleged to be against the evidence, the weight of the evidence or wrong in law.
   
2. The issue of whether the conviction is safe and satisfactory can be determined by reference to the evidence, the treatment given to them by the trial judge; the findings of fact and the reasons for the findings and the eventual decision on verdict; Denden Tom & Anor v The State (2008) SC967 referred to.
   
3. Based on the evidence, the trial judge was entitled to conclude that the conduct of the appellants involved an intent to stop the service of contempt charges, and they thereby obstructed the administration of justice contrary to s 136 Criminal Code.
   
4. An appellant in an appeal against sentence must show that the primary 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 referred to.
   
5. The trial judge did not err in the exercise of her sentencing discretion; that she properly considered all relevant mitigating and aggravating factors and disregarded irrelevant matters.
   
6. While the sentences appear to be a quantum leap, the seriousness and circumstances of the offence warranted the sentences imposed: Thress Kumbamong v The State (2008) SC1017 referred to.
   
7. The appeals against the convictions and sentences were dismissed.
   

Cases Cited:

Denden Tom & Anor v The State (2008) SC967
Gimble v The State [1988-89] PNGLR 271
Goli Golu v The State [1979] PNGLR 653
Havila Kavo v The State (2015) SC1450
Jimmy Lama v NDB Investments Ltd (2015) SC1423
State v Kande (2021) N9132
State v Kande (2021) N9252
Lawrence Simbe v The State [1994] PNGLR 38
Sanawi v The State (2010) SC1076
State v Kiliki [1990] PNGLR 216
State v Naime (2005) N2873
State v Peril (2005) N2883
State v Tokoye (2009) N4210
Thress Kumbamong v The State (2008) SC1017
William Norris v The State [1979] PNGLR 605

Counsel:

Mr M Wenge, for the Appellants
Mr D Kuvi, for the Respondent

APPEALS

These are appeals against conviction and sentence for one count of attempt to obstruct the course of justice.

12^th December, 2022

1. BY THE COURT: The appellants were jointly indicted on four charges including attempt to obstruct the course of justice, an offence under s136 Criminal Code. The case went on trial following their pleas of not guilty to all charges, and they were convicted only of the charge under s 136; State v Kande (2021) N9132. While Tony Kande and Henry Naio were each sentenced to two (2) years imprisonment, Wilson Muka was imprisoned for eighteen (18) months; State v Kande (2021) N9252.
   
2. Each appellant filed his own notice of appeal challenging his conviction and sentence. Because they all raise identical grounds of appeal, the appeals were heard together.
   

GROUNDS OF APPEAL

3. The grounds of appeal set out in [3] of the Notices of Appeal and they read:
   

3.1 The Learned Trial Judge erred in fact and law when she held that the appellants threatening and intimidation of the complainant was intended to obstruct the course of justice when the facts and evidence by the State demonstrated that the actions of the appellant followed an episode of harassment and intimidation tactics used by the Complainant to effect service of contempt charges which is more consistent with “spur of the moment” reaction for being treated like a common criminal.

3.2 The Learned Trial Judge erred in fact and law in entering the conviction in the absence of evidence adduced by the State to prove beyond reasonable doubt the guilt of the Appellant, thus rendering the conviction unsafe and unsatisfactory.

3.3 The Learned Trial Judge erred in fact and law by placing little or no weight on mitigating factors in favour of the Appellant, particularly in regard to lengthy delays in prosecution for over seven years and the fact that the Appellant was not personally served contempt charges and there was no evidence of the Appellant being aware of the contempt charges.

3.4 The Learned Trial Judge failed to take into account that the Police Commissioner had issued directions that the Prime Minister would not be arrested and the Appellant as a subordinate was subject to the direction and control of the Police Commissioner, which effectively vitiated the exercise of her sentencing discretion.

3.5 The Primary judge erred when she held that the Appellants’ actions achieved their desired effect as the Complainant did not go on to serve the charges when the State failed to produce any evidence that the contempt proceeding were ongoing or were stayed, given that it was undisputed that contempt proceedings against the Appellant were withdrawn and did not reach any finality, which vitiated her sentencing discretion.

3.6 The sentence of 2 years is a quantum leap, considering the trends in sentencing on a charge of attempting to obstruct justice have been between the ranges of non-custodial sentences to 6 months imprisonment.

[Emphasis added]

THE TRIAL

4. The State’s case was that in the late afternoon of 19 October 2014, Chief Sergeant Patrick Premenga together with other policemen from the National Fraud & Corruption Unit attempted to serve contempt charges that had been issued by the National Court against several policemen who had prevented the service of a warrant of arrest ordered against the then Prime Minister, Peter O’Neill. One of the charged policemen was Sergeant Philip Pokop who lived at the Games Village Waigani. Pokop refused to accept service of the contempt charges and requested Premenga leave his yard. There was a heated verbal exchange between them before Premenga left the premises.
   
5. Premenga and his team next tried to effect service on two other policemen including the appellant Henry Naio who lived at Gordons Barracks. Service on Naio was unsuccessful as he was not at home.
   
6. After debriefing back in the office, Premenga went home to his residence at the Games Village.
   
7. Apparently, Pokop was the leader of the faction of policemen who blocked service of the warrant of arrest on Mr O’Neill.
   
8. Between 7 and 8 o’clock that night, several vehicles with armed policemen led by Pokop went to Premenga’s residence, entered his yard, and terrorized him and his family. Premenga was threatened and assaulted, and gun shots were fired by the intruders. The other policemen with Pokop included the appellants. The confrontation ended after about half an hour when Pokop and his men left.
   
9. The prosecution contended the appellants threatened and assaulted Premenga (and that included gun shots being fired) at his residence at the Games Village Waigani, to frighten him off from further trying to serve contempt charges issued by the National Court, and this constituted an attempt to obstruct the course of justice.
   
10. In support of its case, the State called five witnesses and tendered several documents by consent, including the records of interview of each appellant. Apart from Premenga, the other State’s witnesses were:
    
    • Thecla Premenga, Premenga’s wife – an eyewitness.
      
    • Elizah Mase, who is Thecla’s brother then living with the Premengas – an eyewitness.
      
    • Willie Lape, a former policeman who was living next-door to the Premengas – an eyewitness.
      
    • Detective Segeant Vincent Tapungu, a forensic police officer who examined spent bullet shells that were collected from the scene.
      
11. The appellants did not produce any evidence in the defence of the charges against them. They each chose to not testify, and no witnesses were called on their behalf.
    
12. In the records of interview:
    
    • Tony Kande chose not to answer questions.
      
    • Henry Naio stated that he was at 9 Mile at the relevant time and arrived on the scene after the event.
      
    • Wilson Muka said that he was at Hula village that night and was not present during the incident.
      
13. In relation to the charge under s 136, Kande argued there was no intent to obstruct the course of justice, while Naio and Muka relied on alibis.
    
14. The trial judge however found the charge properly proven against all the appellants and accordingly convicted them.
    

APPEALS AGAINST CONVICTIONS

15. A conviction will only be set aside on appeal if the criteria described in s23(1) of the Supreme Court Act have been met. As was explained by the court in Havila Kavo v The State (2015) SC1450:
    

To succeed on an appeal against conviction an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115)".

[Emphasis added]

16. In Denden Tom & Anor v The State (2008) SC967, the Supreme Court further clarified:
    

“... unless this Court is satisfied that, there is reasonable doubt as to the safeness and satisfactoriness of the verdict, the decision of the National Court cannot be easily upset. The issue of whether or not the conviction is safe and satisfactory can be determined by reference to the evidence that was before the Court, the treatment given to them by the trial judge and what use he made of them in terms of choosing what evidence to accept and what to reject with the reasons for doing so, his findings of fact with his reasons of his findings and the eventual decision on the appellants’ verdict.”

[Emphasis added]

17. The requirements for instituting an appeal are set out in O 7 of the Supreme Court Rules. The form and contents required of a notice of appeal are prescribed by O 7 r 9. Relevantly, r 9(c) obliges an appellant to state briefly but specifically the grounds relied upon in support of the appeal. Further, r 10 states:
    

Without affecting the specific provisions of Rule 9, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.

[Emphasis added]

18. If it is alleged on appeal that a judgment is against the evidence or the weight of the evidence, the notice of appeal must specify with particularity the ground relied on to demonstrate that: See Jimmy Lama v NDB Investments Ltd (2015) SC1423.
    
19. Grounds 3.1 and 3.2 of the appeal are relevant in respect of the appeals against conviction.
    
20. We first address Ground 3.2 which in essence asserts that the prosecution did not prove its case beyond a reasonable doubt, or put another way, the convictions were against the weight of evidence. Clearly, Ground 3.2 is contrary to O 7 r 9(c) & r10, and it is therefore incompetent. The effect of this is that the findings of fact by the trial judge remain unchallenged except for the allegation contained in Ground 3.1.
    
21. The appellants contend in Ground 3.1 that the trial judge erred in finding that they had the necessary intent to obstruct the course of justice when their actions were only a response to the harassment and intimidation by the complainant (Premenga) towards the alleged contemnors and their families when seeking to serve the contempt charges.
    
22. As noted earlier, the appellants did not present any evidence in their trial. This means that:
    
    • the appellant Kande offered no evidence in support of his claim that Premenga had tried to serve the contempt charges with intimidation and harassment; and
      
    • while the appellants Naio and Muka filed notices of alibi, they did not adduce evidence to support that defence.
      
23. The transcript of the trial shows that cross-examination of the prosecution witnesses also failed to extract answers that supported the defences raised.
    
24. The trial judge properly noted the two essential elements of the offence under s 136, being:
    
    • the intention to obstruct, prevent, pervert or defeat; and
      
    • the course of justice.
      
25. After considering and applying the relevant legal principles relating to principal offenders under s 7 of the Criminal Code, identification evidence, and circumstantial evidence, the trial judge stated:
    
    54. I find that contempt charges were issued by the National Court against Sgt Pokop and ten police officers alleged to have frustrated the execution of a warrant for the arrest of the former Prime Minister, Peter O’Neill. At about 6 pm on Sunday, 19 October 2014 Premenga and CS Barum went to serve the charges on Sgt Pokop at his home at Games Village. They travelled in two to three vehicles with between four and ten men. They were not armed. Pokop refused to accept the charges and followed them up to the car with an armed rifle. They then attempted service on Ela Ravu at his home at Bagita Barracks, who also refused to accept service. They went to serve Henry Naio at his house but he was not present so they left. After debriefing they returned home. Between 7 and 8 pm three motor vehicles came to the complainant’s house. One blocked his driveway, and the others parked on the road beside his residence. Several armed police officers in uniform exited the vehicles. Officers shouted at the neighbours to turn off their lights and go back inside. Five officers led by Sgt Pokop stormed up the stairs to the complainant’s verandah, including Kande, Naio and two others. Someone called for Premenga to come outside. The complainant came to the door. They said they were going to kill him. Kande, who was drunk, punched him hard with a clenched fist to the face. Sgt Pokop pointed an M16 rifle at him. Kande pointed a gun at the complainant’s face. The gun triggered but failed discharge. Kande pointed the gun up into the air and it discharged into the ceiling. Sometime later a second shot was fired, from an M16 rifle, into the rear driver side tyre of the complainant’s police-issued vehicle, which was parked in the driveway of his house. The whole incident took about half an hour before the accused and other policemen left.
        

[Emphasis added]

26. The trial judge continued:
    
    56. Whilst I have warned myself about the dangers of identification evidence, I am satisfied beyond reasonable doubt that Sgt Pokop, and the two accused Kande and Naio were present on the verandah of the complainant’s house at the relevant time... The State’s evidence excludes the possibility that Naio came to the house later that night after the incident.
        
    57. I am also satisfied beyond reasonable doubt for the reasons outlined under Count 4 that Muka was at the complainant’s home that night, and that he was armed.

[Emphasis added]

27. After discussing the offence under s 136 with reference to relevant case authority, the trial judge concluded that she was satisfied beyond reasonable doubt that:
    
    • Kande and Naio threatened Premenga with the intention of stopping him from serving the contempt charges [79]; and
      
    • Muka was not on the veranda of Premenga’s house, but he was there on the premises with the full knowledge that Pokop, Kande and Naio were trying to stop Premenga from serving the contempt charges, and he was there for the same purpose, and at least to encourage and assist them [82]-[83].
      
28. The trial judge also found at [86] that the conduct of the appellants was a clear and deliberate attempt to stop the contempt charges from being served, and thereby prevent the court from deciding the charges.
    
29. Earlier at [84], her Honour reasoned:
    

I don’t accept that the complainant and his men “went with ten vehicles” and harassed the families of the accused. I accept the description given by the complainant as to the circumstances of attempted service. I have taken into account statements made at the time to the effect that “we are not criminals” and are “small policeman just like you, why are you coming with 10 vehicles looking for us”. Those statements only strengthen my view that the accused considered that they should not face charges at all. Moreover, this was not merely an exercise in frustration. This is not how officers concerned about breaches of protocol behave. They do not coordinate three vehicles and marshal several armed police officers to storm another officer’s home at night, in the presence of his family, demanding that neighbours turn off their lights, before threatening him with weapons, threats of death and actual assault.

[Emphasis added]

30. On the evidence before her, the trial judge was entitled to make the findings regarding the culpability of the appellants and find them each guilty of attempting to obstruct the course of justice.
    
31. We are not persuaded that her Honour committed any error in convicting the appellants, or that the convictions are unsafe or unsatisfactory as claimed in this appeal.
    

APPEALS AGAINST SENTENCES

32. A person convicted by the National Court may, with leave, appeal against the sentence passed on his conviction; s 22(d) of the Supreme Court Act.
    
33. The relevant principles in relation to an appeal against sentence are succinctly stated by Kearney, J in the Supreme Court case of William Norris v The State [1979] PNGLR 605 at 612–613. An appellate court will not disturb the discretionary power exercised by a trial court in sentencing. To disturb the sentence, the appellant must show error by the trial judge in the sentencing process. Such error may be identifiable such as mistake regarding facts or application of the law; error in taking into account matters or omitting matters; and not giving proper weight to matters; but even if no identifiable error can be shown, the sentence may be set aside if the sentence is clearly out of reasonable proportion to the circumstances of the offence.
    
34. In Ground 3.3, the appellants claim that the trial judge erred by placing little or no weight to the following mitigating factors:
    
    • The long delay of 7 years before the appellants were tried; and
      
    • That the appellants were never served and therefore were not aware of the contempt charges.
      
35. At [58]-[63] of her judgement, the trial judge addressed delay in prosecuting, and properly noted that it is not a mitigating factor but may be a relevant consideration on sentence, depending on the circumstances of the case. Her Honour then correctly added that this must be weighed against the seriousness of the of the offence committed, which in this case was very serious “because it constitutes an attack on the system of justice itself.”. The matters noted by the trial judge as bearing on the seriousness of the offence included:
    
    • It was committed by serving policemen;
      
    • It involved a group, few of them armed with firearms;
      
    • It involved serious threats of violence;
      
    • It was committed at night, at the home of Premenga, and traumatized both he and his family; and
      
    • It was not done in the spur of the moment, and it lasted a while.
      
36. Further in respect to Ground 3.3, it matters not that the contempt charges were not served on the appellants. On the evidence, the trial judge properly found that the National Court had issued contempt charges against certain policemen, including Pokop and Naio, and the appellants were part of a group of policemen who attacked and assaulted Premenge to deter him and other policemen working with him from serving the charges.
    
37. Regarding Ground 3.4 of the appeal, we find no error in the trial Judge observing at [52]:
    

As for the suggestion that the offenders were directed to stop the service of the arrest warrant on the Prime Minister, that matter is not before me and I heard no evidence about that.

38. We understand Ground 3.5 of the appeal to suggest that despite the finding that the appellants’ conduct amounted to an attempt to prevent the service of the contempt charges, those charges were withdrawn, and this mitigated the appellants culpability. To this, we agree with the trial judge’s view at [53] that “whether ... the contempt charges proceeded to finality is beside the point.”
    
39. Ground 3.6 of the appeal alleges the sentences imposed were a quantum leap from the range of sentences previously imposed for the offence of attempting to obstruct the course of justice.
    
40. For comparable sentences, the trial judge referred to the following case authorities:
    
    • State v Kiliki [1990] PNGLR 216 – a church pastor tried to persuade a magistrate to terminate criminal proceedings against seven men accused of a sexual offence – offender was discharged upon his own recognisance of K550 and to be on good behaviour for two years.
      
    • State v Peril (2005) N2883 – offender sent her daughter out of town so that she could not testify against her father who was charged with committing incest upon her – pre-trial custody period of one year one and a half months was considered sufficient punishment.
      
    • State v Tokoye (2009) N4210 – the offender swore a false affidavit - pre-trial custody period of one year was again considered as adequate penalty.
      
41. In deciding the appropriate sentences to impose, her Honour noted these relevant principles:
    
    • That every sentence must be determined according to the facts and circumstances of the case: Lawrence Simbe v The State [1994] PNGLR 38;
      
    • That the maximum penalty is reserved for the most serious type of the offence: Goli Golu v The State [1979] PNGLR 653.
      
42. The trial judge considered all relevant mitigating factors but determined that they were greatly outweighed by the aggravating features. The gravity of the offence highlighted by the matters listed in [34] above was emphasized; particularly the fact that the offence was committed by serving policemen whose fundamental duty is to protect society and maintain order by ensuring that the laws are not breached. Her Honour referred to and endorsed the strong remarks of Mogish J in State v Naime (2005) N2873 reflecting these sentiments.
    
43. In the circumstances, the trial judge considered this case as a most serious instance of the offence; that therefore warranted imposition of the maximum penalty, two years imprisonment. Her Honour noted that Muka’s involvement was not as serious as that of Kande and Naio, and in accordance with the parity principle as discussed in Gimble v The State [1988-89] PNGLR 271 and elaborated in Sanawi v The State (2010) SC1076, Muka was sentenced to a lesser term of eighteen months imprisonment.
    
44. While the sentences appear to be a quantum leap from the range identified by the comparative sentences in the cases cited in [39] above, we acknowledge these pertinent remarks concerning the sentencing discretion, expressed by the Supreme Court in Thress Kumbamong v The State (2008) SC1017 at [71]:
    

In the exercise of that discretion, a trial judge should be at liberty to impose a sentence that could be considered either too low or a “quantum leap” or “too crushing” on an offender if the circumstances in which the offence was committed and the factors for and against the offender warrant the kind of sentence imposed.

[Emphasis added]

45. We find no error in the approach taken by the trial judge in deciding the sentences, and we agree that they are justified in all the circumstances and are not manifestly excessive.
    

ORDER

(1) The appeals against both conviction and sentence are dismissed.

(2) The convictions of the appellants by the National Court on 13 September 2021 are confirmed.

(3) The sentences imposed upon the appellants by the National Court on 5 November 2021 are confirmed.

(4) That appropriate warrants of commitment shall issue.

(5) Bail monies shall be refunded upon production of relevant receipts.

________________________________________________________________
Luthers Lawyers: Lawyers for the Appellants
Office of the Public Prosecutor: Lawyers for the Respondent