SC2518

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO 94 OF 2023

JEFFREY SAA
Applicant

V

THE STATE 
Respondent

Waigani: Cannings J
2023: 21st November, 13th, 19th December

CRIMINAL LAW – sentences – application to Supreme Court for leave to apply for review of sentence passed by National Court – Constitution, s 155(2)(b) – considerations relevant to determination of leave application.

A prisoner who was sentenced to 25 years imprisonment by the National Court and had his appeal against conviction dismissed by the Supreme Court, applied to a single Judge of the Supreme Court for leave to apply under s 155(2)(b) of the Constitution for review of the sentence. He argued that the Supreme Court purported to also dismiss an appeal against sentence but that was a mistake as he originally only appealed against conviction. He argued also that the sentence was manifestly excessive and that mitigating factors were not taken into account. 

Held: 

(1)	An application for leave for review under s 155(2)(b) of the Constitution may be heard and determined by a single Judge of the Supreme Court. 

(2)	When deciding whether to grant leave, three criteria, all of which should support the grant of leave, are considered: (i) whether it is in the interests of justice to grant leave; (ii) whether there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and (iii) whether there are clear legal grounds meriting a review of the decision.

(3)	There was an unreasonable delay in applying for leave, and no satisfactory explanation for it. It is not in the interests of justice to allow an applicant to apply for review of his sentence in such circumstances. There are no cogent and convincing reasons or exceptional circumstances warranting the grant of leave. The sentence of 25 years imprisonment for wilful murder is unexceptional. There are no clear legal grounds warranting a review of sentence. Leave refused.

Cases Cited

The following cases are cited in the judgment:

Bob v The State (2005) SC808
Nane v The State SCREV 75 of 2019, 30.03.22, unreported

Counsel

J Saa, the applicant, in person
T Kametan, for the Respondent 

19th December 2023

1.     CANNINGS J: Jeffrey Saa is a prisoner at Bomana Correctional Institution serving a sentence of 25 years imprisonment after being convicted of one count of wilful murder under s 299(1) of the Criminal Code in a trial at Waigani before Justice Mogish. He was convicted on 1 December 2016 and sentenced on 6 February 2017.

2.    His appeal against conviction was heard by the Supreme Court (Yagi J, Polume-Kiele J, Miviri J) on 24 July 2020 and dismissed on 15 October 2020 (Saa v The State SCRA 68 of 2016, 15.10.20, unreported). 

3.    On 25 September 2023 he filed an application in the Supreme Court for leave to review his sentence. 

4.    He says that when the Supreme Court delivered judgment on his appeal, Polume-Kiele J and Miviri J in their joint judgment addressed the question of his sentence and purported to dismiss an appeal against sentence. He argues that that was a mistake as he only appealed against conviction. 

5.    He argues also that the sentence of 25 years was manifestly excessive and that mitigating factors such as evidence of de facto provocation and his expression of remorse in allocutus were not taken into account. 

6.    The question is whether he should be granted leave to have his 25-year sentence reviewed by the Supreme Court. It is an application for leave to apply for review under s 155(2)(b) of the Constitution of the decision of the National Court to pass that sentence. Section 155(2)(b) states:

The Supreme Court … has an inherent power to review all judicial acts of the National Court.

7.    If there is a right to appeal or seek leave to appeal against any decision of the National Court that has not been exercised the person aggrieved by the decision can only have it reviewed by the Supreme Court with leave of the Court. 

8.    An application for leave is heard and determined by a single Judge in accordance with Order 5 rule 3 of the Supreme Court Rules 2012. I am satisfied that the present application for leave is properly before me. 

CRITERIA 

9.    It has been spelt out in a long series of decisions that in deciding whether to grant leave for review by the Supreme Court of a National Court decision (whether made in the civil jurisdiction of the National Court or as here in its criminal jurisdiction), there are three criteria to consider, all of which should support the grant of leave:

(i)	whether it is in the interests of justice to grant leave; 

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

(iii)	whether there are clear legal grounds meriting a review of the decision.

10.    As to cogent and convincing reasons for granting leave, it is relevant to consider the reasons for not filing an appeal within time and the merits of the case sought to be argued (see Mark Bob v The State (2005) SC808).

DETERMINATION

11.    It appears that the applicant is correct about his appeal that went before the Supreme Court. It was an appeal against conviction only. The question of his sentence was not formally before the Supreme Court and has not been determined. 

12.    The prevailing consideration in this application for leave is that there was a significant delay from the date of sentence, 6 February 2017, to the date of applying for leave for review of sentence, 25 September 2023 – six years and seven months – and no satisfactory explanation for it. It is not in the interests of justice to allow an applicant to apply for review of his sentence in such circumstances. There are no cogent and convincing reasons or exceptional circumstances warranting the grant of leave. A sentence of 25 years imprisonment for wilful murder is unexceptional. There are no clear legal grounds warranting a review of such a sentence. Leave must be refused.

ORDER 

1.	Leave to apply for review under s 155(2)(b) of the Constitution of the sentence of 25 years imprisonment passed by the National Court on 6 February 2017 is refused.

2.	The file is closed.
_____________________________________________________________
Public Prosecutor:  Lawyer for the Respondent