SC2369

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 27 0F 2018

JESSIE KAIA
Appellant

V
THE STATE
Respondent

Lae: Kangwia J, Toliken J, Gora J
2022: 26th & 29th April

CRIMINAL LAW – sentencing – appeal against cumulative sentence of 3 years for grievous bodily harm – whether any identifiable error made by sentencing Judge – whether sentence manifestly excessive – No identifiable error shown – sentence not manifestly excessive – appeal dismissed.

Cases Cited

William Norris v The State [1979] PNGLR 605
Avia Aihi v The State (No.3) [1982] PNGLR 92
Konio v The State (2020) SC2122
Michael Mikoro v The State (2015) SC1424
Saperus Yalibakut v The State (2006) SC890
John Vali v The State (2007) PGSC 31; SCRA 61 of 2004

Counsel

J Unua, for the Appellant
P Matana, for the Respondent

JUDGMENT

29th April, 2022

1.	BY THE COURT:  The Appellant Jessie Kaia was indicted with two counts of causing grievous bodily harm pursuant to Section 319 of the Criminal Code on 17 April 2018. He pleaded guilty before Numapo AJ (as he then was) to both counts. 

2.	On 03 July 2018, he was sentenced to 3 years for each count which were ordered to run concurrently. He was further ordered to pay K3000 and K2000 respectively to the two victims of his crime within 30 days, upon which 1 year and 6 months (18 months) shall be deducted from the sentence. Failing that he will serve the full sentence of 3 years.

3.	The appellant appealed against his sentence only. Pursuant to Section 22(9) of the Supreme Court Act 1975, leave to appeal was granted by Cannings J on 17 March 2022.

Background

4.	The appellant was a policeman attached to the Prosecution Section at the Lae Police Station. On 25 May 2018, while off duty and in civilian clothes, he entered the Anderson Supermarket while intoxicated.  He proceeded to the Kai Bar section of the shop and while standing there spat on the floor. A female shop assistant saw what he did and asked him why he did that. A customer who was waiting to be served by the name of Philip Barasuru also told him that what he did was not right. An argument soon ensued between the appellant and Philip Barasuru and security guards. The appellant walked out of the shop just as a police vehicle pulled in. He told the policemen what had happened, and they apprehended Philip Barasuru and a shop employee by the name of John Brendon. They got them into the police vehicle and drove to the Chinatown Police Station. On the way the appellant kicked the two men and further assaulted them at the station when they arrived. He hit Philip Barasuru on his left arm with an iron rod and used a wooden spade handle to hit John Brendon on his nose. Both victims were then placed in the cells. Both sustained serious bodily injuries and required medical treatment. The medical reports showed that Philip Barasuru sustained a fractured ulna of the left arm and John Brendon suffered a broken nose. 

Grounds of Appeal

5.	The appellant raised four grounds of appeal. These are:

(a)	That the trial judge erred in the exercise of his sentencing discretion by failing to take into account the strong mitigating factors available before him.
(b)	That the trial judge erred in the exercise of his sentencing discretion by imposing the sentence which was not proportionate to the nature of the case.
(c)	The trial judge erred in the exercise of his sentencing discretion by relying on the medical report which was not properly deposed by a qualified medical practitioner.
(d)	The sentence of 3 years is manifestly excessive.

6.	At the hearing of the appeal Mr. Unua of Counsel for the appellant abandoned Ground (c). 

The Law 

7.	A sentencing judge has wide discretion. In an appeal against sentence, the appellant, must necessarily demonstrate that the judge made an identifiable error, whether in law or fact, which has the effect of vitiating the sentence. But even where no error is identifiable, an unidentifiable error can be inferred if the sentence is out of all reasonable proportion to the crime. (William Norris v The State [1979] PNGLR 605; Michael Mikoro v The State (2015) SC 1424)

8.	To fully appreciate what is required of an appellant to convince this Court to disturb a sentence, it is appropriate to quote fully from what Kearney J relevantly stated in William Norris (supra):
“… the question in practice on a sentence appeal is usually this - has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, 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 he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error 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, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.
Where an identifiable error is relied on as a ground of appeal it should be set out in the notice of appeal, with particulars. An appellant relying upon identifiable error will usually have to show as well that the sentence was manifestly excessive, because otherwise he is unlikely to persuade this Court (as he must, to comply with s. 22 (4) of the Supreme Court Act 1975), that a different sentence should have been passed; this is because there is no precise sentencing tariff.
To state in a notice of appeal as the only ground of appeal, that a sentence is manifestly excessive, when what in truth is relied on is an identifiable error, conceals the question which this Court will be asked to determine.”
9.	We proceed now to consider the remaining grounds of appeal. 

Ground (a): Failure to consider strong mitigating factors 

10.	What are the strong mitigating factors which the appellant says the sentencing Judge failed to take into account? He must set these out in his notice of appeal, and further set out the error he imputes against the sentencing judge. He does not say with particularity what these are. We agree and follow Kearney J in William Norris that these must be set out in the notice of appeal. This failure alone should render this ground unmeritorious or taken at its highest, incompetent.

11.	But for what it’s worth, the appellant sought to argue in submissions that the strongest mitigating factor is his early guilty plea. He argues that he admitted his offence at the earliest opportunity – during the record of interview, followed by his early guilty plea on arraignment thus, saving time for the court. He argues that this was not reflected in the judgment. And even though the primary Judge did mention the early guilty plea as a mitigating factor, this does not demonstrate that it was properly taken into account.

12.	The appellant further submitted that the primary Judge placed too much emphasis or weight on the victims’ statements and thus erred in that regard because those statements were never tested by the Defence. He finds support in what this Court held in Saperus Yalibakut v The State (2006) SC890 - that on a guilty plea an offender must be sentenced to the facts which he has pleaded guilty to.  To facts which the offender has not pleaded guilty to, he must be given the benefit of a doubt.

13.	Ms Matana submitted for the respondent that the appellant’s record of interview contained partial admissions only. He merely admitted being at Anderson Foodland, Eriku, of having spat on the floor with betel nut spittle which made some people unhappy, that there was exchange of words, and foul language directed at him. He, however, denied ever assaulting the victims either in the police vehicle or at the Chinatown Police Station. 

14.	On the appellant’s contention that the primary Judge placed too much emphasis on the victims’ statements and that he was not given the benefit of a doubt thus offending the principle in Yalibakut, Ms Matanai submitted that the statements do not deviate from those brief facts which the appellant pleaded guilty to in anyway. The statements are merely longer versions of the chain of events which were summarized in the brief version put to the appellant on arraignment. There are no contradictions or differences between the statements and the brief facts. In any case, the appellant has failed to point to any specific facts in the victims’ statements that are not in the brief facts which are unfavourable to him.

15.	We do not find any error in the primary judge’s exercise of discretion in respect of the appellant’s guilty plea. We find that His Honour did in fact consider the appellant’s early guilty plea when discussing the factors in the appellant’s mitigating factors. It was not necessary for the primary judge to say specifically that the early guilty plea saved the court time and money had he forced a trial as the appellant appears to be imploring us to hold. The fact that he did not say it does not mean that he did not consider or advert his mind to the benefits of an early guilty plea to the court and to the State. 

16.	In Avia Aihi v The State (No.3) [1982] PNGLR 92, the appellant appealed against her life sentence for wilfully murdering the victim during a visit to the crime scene by the trial court, in retaliation for the murder of her husband, for which the accused was being tried. In rejecting arguments by defence counsel that the trial judge, ignored, among others, other mitigating factors urged on him, Kidu CJ said that “[a] judge does not always, in making remarks on sentence, mention each and every factor for and against an accused person.” 

17.	Kearney DCJ then expanded on this saying that "... if the sentencing judge does not expressly refer to all the matters urged in mitigation before him, it is not to be inferred that he has not taken them into account; the proper presumption is that he has considered each important matter put before him, and given it due weight, it is for the appellant to show that this did not occur, or that some error was made in the process." 

18.	In John Vali v The State (2007) PGSC 31; SCRA 61 of 2004, the court there again reiterated that it is not necessary for a trial judge to recite every single point which counsel has made to establish that the trial judge has taken that point into account. (See also Konia v The State (2020) SC2122)

19.	On the flip side, our reading of the Appeal Book reveal that contrary to counsel’s submission that the appellant made early admissions in his record of interview, the appellant in fact did not. He denied ever assaulting the victims with weapons when the pertinent questions were put to him. Therefore, we do not see how it can be said that the appellant’s guilty plea was a significant or strong mitigating factor which his Honour disregarded.

20.	 Even if it were, which we find not to be the case, it is rendered insignificant by the very strong aggravating factors found against the appellant. He was a serving policeman, was intoxicated when he committed the offence, assaulted the victims with offensive weapons while they were in police custody in the presence of other officers who did nothing to dissuade or prevent the appellant from attacking them, and the prevalence of police brutality against citizens.

21.	This argument therefore has no merit and must fail.

22.	On the appellant’s contention that the primary erred by overly emphasizing the victim’s statements in his judgment, we agree with Ms Matana that the fact that the primary judge quoted from the victims’ statements at some length, does not offend the principle in Yalibakut. The facts there stated neither departed in any significant or material way from the pertinent facts the appellant pleaded guilty to on arraignment, nor do they introduce any new and controversial facts. 

23.	It was not argued that the primary Judge erred in referring to those statements, but merely that he placed too much emphasis and weight on them, thus denying the appellant the benefit of a doubt on matters that may have been in dispute. The appellant does not show what aspects of the statements he takes exception to which ought to have been applied in his favour. This leg of the argument must also fail. The appellant has not demonstrated to us an identifiable error which ought to vitiate the primary judges sentencing discretion.

Ground (b):	Disproportionality between sentence and nature of case.

24.	This ground was not abandoned. It was simply not addressed and argued by Mr. Unua. Whether this was by design or inadvertence, we cannot say. But even if it were pursued, in our view there is simply no way it could have succeeded. The onus is on the appellant to demonstrate that the primary Judge committed an identifiable error. He has not done so, hence this ground must necessarily fail.

Ground (d): Whether sentence is manifestly excessive.

25.	Where it is contended that a sentence is manifestly excessive, the real question for the Court to determine is whether an identifiable error has been shown. (Avia Aihi v The State (No.3) (supra) per Kearney DCJ)

26.	In other words, a finding of a manifestly excessive sentence naturally results from an identifiable error, whether in law or fact, by the sentencing Judge being demonstrated. It cannot stand alone as a ground of appeal against sentence. It is not an end to itself, as it were. 

27.	And so given our findings on the foregoing grounds, we must inevitably hold that the appellant has not succeeded in demonstrating to us a clear identifiable error by the primary Judge when exercising his sentencing discretion, and naturally it should follow that the sentence appealed against is not excessive. 

28.	Interestingly, we are baffled by the appellant’s contention that the sentence of 3 years is manifestly excessive because that is exactly what his lawyer Ms Katurowe asked for in her submission on sentence. At page 37 and Lines 14,15,16,17 & 28, 29 of the Appeal Book, counsel explicitly beseeched the court to impose a sentence of 3 years for both counts to be served concurrently. And indeed, the primary judge acceded to that. His Honour made a further concession – that half the sentence (18 months) be deducted should the appellant pay K3000 and K2000 compensation to the respective victims within 30 days. How generous or overindulgent can one get?

29.	This appeal must therefore fail in its entirety for being totally unmeritorious.

30.	In passing we must state for the record that the Applicant can count himself lucky on two fronts.

31.	First is that he was readily granted leave to appeal 23 days after his recapture by a single man Supreme Court Judge purportedly on a prisoner application for leave to appeal filed on 17 August 2018. The records do not show the reason for the grant of leave but the delay in prosecuting the application is more than 3 years, apparently caused by the appellant’s escape. A detainee who escapes from lawful custody while an appeal or application for any redress by that person is pending, the right to prosecute the application or appeal should stand forfeited despite how good it may seem. An escape from lawful custody is an affront to the rule of law. 

32.	The second is that the Public Prosecutor did not institute a counter appeal against sentence. The offences were identified as serious, yet the sentences did not reflect that observation. Physical injuries were caused to two victims. If the Public Prosecutor as the chief protector of the law challenged the sentences imposed the likelihood of a favourable decision than the one imposed might have a high chance of success.

Orders

1.	The appeal is dismissed.
2.	The sentence of the National Court dated 07 July 2018 is affirmed.

Ordered accordingly.

________________________________________________________________
L B Mamu, The Public Solicitor: Lawyer for the Appellant
P Kaluwin, The Public Prosecutor: Lawyer for the Respondent