SC2367
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 19 OF 2019

DANIEL DUALE WERA
Applicant

AND

THE STATE
Respondent

Waigani: Kariko, Anis and Berrigan JJ
2023: 21st February and 29th March

REVIEW OF SENTENCE – Wilful Murder - Principles applied – No identifiable error on the face of the record – Sentence of 30 years not manifestly excessive – Review dismissed. 

The applicant was convicted of wilful murder following trial and sentenced to 30 years of imprisonment.  

Between 8 am and 9 am on 13 May 2014 the applicant was with members of his family some of whom were armed with iron bars, sticks and stones. At the time the applicant was armed with an iron bar. For reasons that are not clear he crossed the road and entered the yard of the deceased who was sitting outside his house with two of his relatives, Nancy and Wesley. Despite the efforts of his relatives to pull him out of the premises, the applicant proceeded to attack the deceased and his relatives.  He swung the iron bar at Nancy but missed her.  He then swung at Wesley but also missed him.  He then struck the deceased, who was unarmed and defenceless, on the head. The applicant lifted the iron bar and hit the deceased again, causing him to fall on to the ground, and walked off.  Nancy and Wesley quickly called for a taxi but the applicant stood on the road and frightened the taxi driver away.  Eventually another taxi arrived and transported the deceased to the hospital where he died as a result of blood loss caused by the head injuries.  

The applicant applied for review of his sentence on the basis that the learned trial judge failed to take into account his remorse on allocutus and gave no weight to his character before and after the offence was committed.  Alternatively, it was argued that the sentence was manifestly excessive. 

Held:

(1)	The sentencing judge was entitled to find that the applicant’s expression of remorse on allocutus was of limited weight and lacking sincerity at that stage of the proceedings and having had the opportunity to hear and observe the applicant at trial and on allocutus. 

(2)	Cooperation with authorities will only be a significant factor in mitigation when it constitutes genuine contrition and remorse or reflects a willingness to assist authorities in their investigations and facilitate the course of justice. Cooperation may also be relevant where an offender assists in the apprehension or conviction of a co-accused with information which is full and frank, and which could significantly assist authorities: State v Richard Namaliu (2020) N8506.  The weight to be given to any cooperation must be considered in combination with other relevant factors. 

(3)	The sentencing judge did not fail to take into account the applicant’s cooperation with authorities. There was no cooperation which demonstrated genuine contrition or a willingness to facilitate the course of justice. 

(4)	The trial judge expressly considered the character of the applicant and was entitled to find that it was not of significant weight given the crime committed.

(5)	There was no identifiable error on the part of the sentencing judge.

(6)	Considering that the maximum penalty for wilful murder at the time of the offence was death, and that the circumstances of the case placed the severity of the crime committed within category two of the guidelines in Manu Kovi v The State (2005) SC789, which suggest a sentencing range of 20 to 30 years, and noting the aggravating circumstances of the case, the very limited nature of matters in mitigation, and the wide discretion of the sentencing judge, the applicant has failed to demonstrate that the sentence imposed is out of all reasonable proportion to the crime committed.  

Review against sentence dismissed.

Cases Cited:
Papua New Guinean Cases

Allan Peter Utieng v State (2001) SCR No 15 of 2000
Kalabus v The State [1988] PNGLR 193
Manu Kovi v The State (2005) SC789 
Ruddy Yekat v State [2000] PNGLR 225
Steven Ume & 2 Ors v The State (2006) SC836 
State v Richard Namaliu (2020) N8506
The State v Warur (2018) N7545
William Norris v The State [1979] PNGLR 605

Overseas Cases

R v Cartwright (1989)17 NSWLR 243

References Cited

Section 299 of the Criminal Code
Section 55(2)(b) of the Constitution 

Counsel

Mr D Wera, Applicant in person 
Mr D Kuvi, for the Respondent/State

DECISION ON REVIEW

29th March, 2023

1.	BY THE COURT: The applicant was found guilty of the wilful murder of Mathew Rokapiri Rombala contrary to s 299 of the Criminal Code. He was sentenced to 30 years’ imprisonment to be served in hard labour, less time spent in custody.

2.	The applicant appealed against conviction, which was dismissed.  He was subsequently granted leave to review his sentence pursuant to s 155(2)(b) of the Constitution in October 2022. 

3.	The trial judge found that between 8 am and 9 am on 13 May 2014 the applicant went in the company of others to the residence of a relative, Paul Bari, at Spoonbill Drive, in Erima.  The deceased was with two of his relatives, Nancy Kundiri and Wesley Bobby, sitting in their residential yard across the road in the same street. During the morning the offender entered the deceased’s premises unlawfully in the company of a group of men, armed with a four-corner iron bar, and began to threaten the deceased and his relatives. The men he was with tried to pull the applicant back out of the premises but he refused and continued to attack the deceased and his relatives.  He swung the iron bar at Nancy but missed her. Then he swung the iron bar at Wesley but also missed him. The third time he swung the iron bar he hit the deceased, who was unarmed and defenceless, on his head. He lifted the iron bar and hit the deceased again, causing him to fall forward onto the ground and walked off.  Nancy and Wesley quickly called for a taxi but the applicant stood on the road and frightened the taxi driver away.  Eventually another taxi arrived and transported the deceased to the hospital where he died as a result of blood loss caused by the head injuries.  

Grounds
 
4.	The applicant seeks review of his sentence on the grounds that: a) the learned trial judge failed to take into account his expression of remorse on allocutus; b) gave no weight to his good character before and after the offence was committed; and c) failed to take account of extenuating circumstances. 

Submissions

5.	It was apparent during submissions that the matters raised as extenuating circumstances by the applicant were in fact challenges to the conviction itself.  The appeal against conviction has been heard and determined and it is not necessary to discuss the matters further. 

6.	On the matter of allocutus, the applicant submits that there was clear evidence of contrition and remorse, which should have counted in his favour.  He complains that the judge said in his sentencing remarks that: “I do not place much weight to his expression of his remorse, it came far too late…”, without saying why it was too late and when was the right time to express it. 

7.	The applicant further submits that the sentencing judge failed to give any weight to the character references provided by Correctional Services and Pastor Dimon Gah of Revival Centres of Papua New Guinea. He also failed to take into account that the applicant had voluntarily called the investigating officer and gone and met with him at Boroko Police Station and allowed police to complete the investigation.  

8.	Finally, whilst not articulated in these terms, it is also clear that the applicant challenges the sentence on the basis that it is manifestly excessive. He ultimately submitted that a sentence of between 20 and 25 years of imprisonment pursuant to category two of Manu Kovi v The State (2005) SC789 should be substituted having regard to the following circumstances:  it was a vicious attack involving the use of an offensive weapon but there was no pre-planning, no strong intention to kill, and there were mitigating circumstances. 

Consideration

9.	The Supreme 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: the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which should not have been taken into account; or failed to take into account matters which should have been taken into account; or clearly given not enough weight or too much weight to a matter properly taken into account. Even where no identifiable error can be shown, a sentence may be set aside if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, that is out of reasonable proportion to the circumstances of the crime:  William Norris v The State [1979] PNGLR 605 at 612 to 613.

10.	There is no merit in the submission that the learned trial judge failed to give sufficient consideration to the applicant’s statement on allocutus. The trial judge expressly noted that the applicant had apologised to the family of the deceased and his own family, and that he promised to never commit a similar offence in the future.   But the judge found the statement to be of limited weight and lacking sincerity.  He was entitled to make those findings at that stage of the proceedings and having had the opportunity to hear and observe the applicant both at trial and on allocutus.

11.	To be very clear, the fact that the applicant exercised his right to trial is not a matter in aggravation.  It follows, however, that he is not entitled to the discount that would have been available if he had pleaded guilty: The State v Warur (2018) N7545 at [31] to [34].  

12.	It is well established that an expression of remorse, which is only given on conviction following trial, is in general terms of much less weight than one given earlier: see Kalabus v The State [1988] PNGLR 193, Ruddy Yekat v State [2000] PNGLR 225, Allan Peter Utieng v State (2001) SCR No 15 of 2000, unreported and many others.  

13.	Furthermore, having read the applicant’s statement on allocutus ourselves we agree that whilst the applicant apologises to the family of the deceased and to his own family, he does not demonstrate any true sense of contrition for the offence itself.  

14.	On the matter of cooperation, the fact that a person cooperates with authorities by attending for interview, or does not deliberately impede an investigation, are not mitigating factors on sentence. 

15.	An accused person is entitled at all times to remain silent.  A refusal to make admissions does not aggravate his offending if convicted.  

16.	Cooperation with authorities, like an early guilty plea, however, will only be a significant factor in mitigation when it constitutes genuine contrition and remorse, or reflects a willingness to assist authorities in their investigations and facilitate the course of justice: State v Richard Namaliu (2020) N8506 at [52] to [53]. 

17.	Cooperation may also be relevant where an offender assists in the apprehension or conviction of a co-accused, with information which is full and frank, and which could significantly assist authorities: State v Richard Namaliu (2020) N8506 at [53] (adopting the comments of R v Cartwright (1989)17 NSWLR 243 per Hunt and Badgery-Parker JJ at 252, which we also regard as persuasive).   

18.	For obvious reasons a person does not get credit in mitigation for providing information to police that is later found at trial to be false or misleading: Namaliu at [53]. 

19.	If the applicant had surrendered himself to police and cooperated with police by confessing the crime that would have been a significant factor in mitigation.  Again, we emphasise that he was under no obligation to do so but it is because of that fact that such cooperation is usually considered a significant factor in mitigation when it is given because it demonstrates genuine contrition or a willingness to facilitate the course of justice.  

20.	The weight to be given to any such cooperation must, however, be considered in combination with other relevant factors. 

21.	In this case the applicant did provide a statement to police, which whilst referred to as a “confessional statement” actually claimed self-defence.  Furthermore, the applicant resiled from the statement at the trial on the basis that it was not an accurate record of what he said. He claimed that he was the victim of mistaken identity and that he was at home in a different part of the city at the relevant time.  Those matters reduce any weight that should be given to the statement, which was not an admission in any event, and which the trial judge found could not be relied upon.  

22.	There is no merit in the submission that the sentencing judge failed to give any weight to the applicant’s character, in particular the references he relied upon. They are not contained on the review book but it appears from the transcript that they confirmed that he had been of good behaviour whilst on remand. The sentencing judge expressly noted that it was to the applicant’s credit that he had been actively involved in church ministry within the prison but found that it was not of significant weight given the crime committed. We agree.  

23.	It follows that the applicant has failed to establish any identifiable error on the face of the record and the review is dismissed on those grounds. 

24.	As to the quantum of the sentence, the maximum penalty for wilful murder under section 299 of the Criminal Code at the time of sentencing was death.

25.	The issue to be determined is not whether this Court would have imposed a different sentence or even whether the sentence is arguably excessive. It must be manifestly so.

26.	In Manu Kovi, supra the Supreme Court suggested the following sentencing ranges for wilful murder, according to four categories of increasing seriousness: 

Category 	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years	
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.	Life imprisonment	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death	

27.	The applicant submitted that the offence fell in the second category of Manu Kovi, supra, attracting a sentence of 20 to 30 years of imprisonment.  This was also the category relied upon by him in the court below. The State submitted below that it was a case close to the worst kind and submitted that a sentence of life imprisonment was appropriate.  

28.	This case does not bear the characteristics of a case warranting the maximum penalty. The State does not suggest otherwise on this review. A non-exhaustive list of such characteristics was set out in Steven Ume & 2 Ors v The State (2006) SC836 but it is not necessary to consider them further here.

29.	In our view the offence properly fell within category two of Manu Kovi, supra.  It was a vicious attack, involving the use of a dangerous weapon, and demonstrating a strong desire to kill.  There was no planning to any great extent but the offender was certainly determined as demonstrated by the fact that he entered the deceased’s yard unlawfully, armed with an iron bar, and proceeded to attack the deceased’s two relatives before attacking the deceased, despite the fact that his own relatives were trying to stop him.  Quite apart from going to establish his intention, it is further aggravating that the applicant deliberately prevented taxis being brought in to take the deceased to hospital for treatment for some considerable time after the offence. 

30.	Unlike other cases which might fall under category two, however, there are no extenuating circumstances present, for instance there was no de facto provocation, duress or coercion.  The offender is not an unsophisticated man and the motive for the killing is unclear.  According to the State witnesses the applicant was with several relatives, many of whom were armed, at a house across the road from the deceased. There is some suggestion in the confessional statement that the killing was in response to the failure of the deceased’s family to pay compensation following a fight a few days earlier which left one of the applicant’s relatives with a broken arm.  If it had been found that the offence was motivated by payback against the deceased’s family that would be highly aggravating but that was not the State’s case and the trial judge ultimately found the circumstances in which the confessional statement was taken to be unreliable.  The trial judge was correct not to consider payback as a factor in aggravation on sentence in those circumstances.  

31.	It is unclear but it appears on the evidence that the applicant became enraged about some matter whilst meeting with other members of his family and vented his anger at an innocent bystander.  On any view it was a senseless and shocking crime, committed against a defenceless, mature man of forty five years of age, in the presence of his family, whilst he was minding his own business, inside the yard of his home, for no apparent reason.  There are no significant matters in mitigation.  The only matter in mitigation is that this was the offender’s first offence, a matter which was taken into account by the learned trial judge.

32.	This Court has repeatedly emphasised the need to deal sternly with crimes of violence.  Nowhere is that more important than in a case of wilful murder.  Wilful murder is one of the most serious offences found in the Criminal Code. Its gravity is reflected in the fact that it is one of the very few offences that until recently attracted the maximum penalty of death.  A severe penalty is required in order to punish and reform the offender, protect the community and deter similar offences in the future.

33.	Considering that the maximum penalty for wilful murder at the time of the offence was death, and that the circumstances of the case place the severity of the crime committed within category two of the guidelines in Manu Kovi, supra which suggest a sentencing range of 20 to 30 years, and noting the aggravating circumstances of the case, the limited nature of matters in mitigation, and the wide discretion of the sentencing judge, the applicant has failed to demonstrate that the sentence imposed is out of all reasonable proportion to the crime committed.  

ORDERS

34.	We make the following orders.

(1)	The review against sentence is dismissed.
(2)	The sentence of thirty years of imprisonment is affirmed.
________________________________________________________________
Mr Daniel Wera: 				In person 
Office of the Public Prosecutor:    	Lawyer for the Respondent