SC2723

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO. 69 OF 2023

PAUL STEVEN
Applicant

AND
THE STATE
Respondent

WAIGANI: DAVID J, YAGI J, BERRIGAN J
27 FEBRUARY, 11 APRIL 2025

CRIMINAL – application for review of conviction – Joint Trials – Amendment of Indictment - Principles applied – Review dismissed.

CRIMINAL – application for review of sentence – Parity - Principles applied – Review dismissed. 

Cases cited
Avia Aihi v The State [1981] PNGLR 81
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Belempin Barnabas and others v The State (1998) SC549
Danny Sunu v The State [1984] PNGLR 305
David Kaya and Philip Kuman v The State (2020) SC2026
Mark Bob v The State (2005) SC808
Simili Kara v The State [1984] PNGLR 254
Sanawi v The State (2010) SC1076
The State v Gamato (2021) N8937
The State v Jimmy Maladina & Herman Leahy (2010) N4081
The State v Tomande (2019) N7798
The State v William (No 1) (2004) N2556
The State v Kobobo (2006) N4477
The State v Ava (2010) N4161
William Norris v The State [1979] PNGLR 605
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424

Counsel
Applicant in person
H Roalakona, for the respondent State

DECISION

1.	BY THE COURT: The applicant was indicted with nine others on one count of conspiracy to commit the crime of stealing, and one count of stealing K5.96m, contrary to ss 515(a) and 372(1)(1A) of the Criminal Code (Ch. 262) (the Criminal Code), respectively.  

2.	At the trial the State filed a nolle prosequi in respect of one accused. Another, Casper Louis, pleaded guilty. Two others were acquitted at the close of the State case. 

3.	The Court convicted the applicant with Hubert Korede, Stewart Korina, Gelison William and Samson Banaso. The trial judge sentenced each of the accused, including the applicant to seven years of imprisonment for conspiracy.  The applicant and Casper Louis were sentenced to 25 years of imprisonment for stealing.  The four remaining co-accused were sentenced to 20 years of imprisonment. The sentences were to be served concurrently. 

4.	The applicant failed to file his appeal within time but was granted leave to apply to review his conviction pursuant to s 155(2)(b) of the Constitution by a single Supreme Court judge on the grounds that: a) the trial judge erred in not ordering separate trials; and b) the indictment was improperly amended.  He was also granted leave to review his sentence on a number of grounds, discussed below.

BACKGROUND

5.	There was no dispute that K5.96m in cash belonging to Maybank intended for delivery by security firm, G4S, to the Bank of Papua New Guinea (BPNG) was stolen on 9 October 2013. The trial judge found that the stealing had been planned for about two months prior. At about 9 am on 4 October 2013, the applicant, who was employed by G4S as the Radio Room Operator, called the armoured vehicle to the G4S Base to collect the Maybank money for banking. Steven Uraliu, who gave evidence for the State, drove the armoured car to the G4S vault and with other co-accused collected K5.96m in cash. The armoured vehicle departed with a G4S escort vehicle. As planned, as the armoured vehicle passed the Port Moresby Fire Station a vehicle driven by another person drove in from the road near the Fire Station and between the armoured vehicle and the G4S escort car and pretended to break down, effectively blocking the traffic coming behind the armoured vehicle. This allowed the armoured vehicle to drive away from the escort vehicle and up to Davetari Drive on Touaguba Hill where a blue land cruiser was waiting. The boxes of cash were taken from the armoured car and placed in the cruiser. Steven Uraliu, Steward Korina and Gelison William were locked up in the armoured vehicle to make it look like a robbery. The monies were taken away and subsequently shared with other co-accused. Almost K4.5m was never recovered.

CONSIDERATION

Joint Trial

6.	Quite apart from the fact that there was no application for the applicant’s matter to be heard separately from those of his co-accused, there was no error or irregularity in the conduct of the joint trial.

7.	It has long been recognised that there must be exceptional reasons for separating the trials of co-accused alleged to have acted as part of a common purpose or in a common enterprise: Belempin Barnabas and others v The State (1998) SC549. The principles governing the joinder of trials are well settled and it is not necessary to restate them or the rationale underlying them for our purposes in any detail: see The State v Jimmy Maladina & Herman Leahy (2010) N4081 and The State v Gamato (2021) N8937 for a discussion of the principles. In brief, it is in the interests of justice, its efficient administration and the ascertainment of truth that the trials of accused persons facing the same charges are usually heard together.

8.	The applicant was charged with others, all of whom were alleged to have taken part in the conspiracy and stealing of monies from G4S. The applicant has failed to demonstrate any reason his trial should have been separated from the others.

Amendment of Indictment

9.	There was no irregularity in the amendment of the indictment. 

10.	It appears that an indictment was served on defence counsel the day before the trial containing one count of conspiracy to steal and one count of stealing, contrary to ss 515 and 372(1)(7), Criminal Code, respectively for which the maximum was seven years of imprisonment in each case. In that indictment the stealing was alleged to have occurred on 4 October 2014.

11.	On the day of the trial the State presented an indictment containing one count of conspiracy to steal and one count of stealing, contrary to ss 515 and 372(1)(1A). Section 1A was inserted into the Criminal Code by the Criminal Code (Amendment) Act 2013, which was certified on 18 September 2013. It increased the maximum from seven years to 50 years of imprisonment: “If the thing stolen is money exceeding K 1million and does not exceed K10 million an offender is liable to imprisonment for a term of 50 years without remission and without parole”.  In addition, the date of the alleged stealing was changed from 4 October 2014 to 4 October 2013.

12.	The State sought to amend the indictment pursuant to s 535, Criminal Code to make the said changes, which application was opposed by defence counsel. The learned trial judge allowed the application on the basis that the initial indictment contained a typographical error, the date of the alleged offence reflected in the depositions was 4 October 2013, and there was no prejudice occasioned by the amendment to the date or the offence provision under which the stealing charge was brought. 

13.	There was in fact no need for the indictment to be amended pursuant to s 535, Criminal Code.  Section 535 had no application as the trial had yet to begin. As explained in The State v Tomande (2019) N7798:

“The accused is yet to be arraigned and therefore is yet to be brought to trial. A trial only begins when the accused is called on to plead to the indictment: s. 557 of the Criminal Code; Simili Kara v The State [1984] PNGLR 254. As such, there can be no question of the State seeking to amend the indictment to include the proposed additional counts at this stage; s. 535 is, by its terms, predicated on a trial having commenced”.

14.	Moreover, the indictment of 6 March 2017 had not yet been presented to the Court. It had simply been shared with counsel.

15.	In this regard it is also well established that even where an indictment has been presented but the accused has yet to be arraigned the State may, with leave of the Court, withdraw the indictment and present another or fresh indictment: The State v William (No 1) (2004) N2556; The State v Kobobo (2006) N4477; applied The State v Ava (2010) N4161; Tomande, supra. Leave should be granted where it is in the interests of justice to do so. The interests of justice require both that accused persons are brought to trial and that they receive and are seen to receive a fair trial: Tomande, supra at [6] and [7].

16.	There was no prejudice to the applicant by the presentation of an indictment that correctly reflected the date of the alleged offence, which was supported by material in the depositions, nor which properly invoked the applicable penalty provision, regardless of the fact that that exposed him to a far greater maximum sentence. 

17.	The State is required to serve a copy of the indictment on the accused a reasonable time before the commencement of the trial: s 554(1), Criminal Code. The practice of the State serving the indictment at the bar table on the day of the trial is to be avoided. If defence counsel was taken by surprise, however, he was at liberty to seek an adjournment: s 554(3), Criminal Code. He did not do so. Moreover, neither the correction of the date nor the applicable maximum penalty should have come as a surprise to counsel and nor did they change the nature or circumstances of the allegation against the applicant.

18.	That is really the end of the matter. We note for completeness that the applicant further argued that the trial judge erred in relying entirely on the evidence of Steven Uraliu, a co-accused, who had been given immunity, when convicting him. The argument is misconceived. 

19.	Mr Uraliu’s evidence was not the only evidence against the applicant. The trial judge considered the evidence in the case as a whole, the oral testimony of Mr Uraliu, the oral evidence of both the State and defence witnesses, including evidence that placed the applicant at the planning meetings, together with admissions by the applicant himself, including that he was in the control room at the relevant time, that it was he who directed the team tasked with the delivery, that he left the control room shortly afterwards and that he received a bag of stolen monies from one of his co-accused shortly after the alleged offence, before immediately leaving for the village. 

20.	Some other grounds were contained in the applicant’s initial application for review regarding representation by counsel and the circumstantial nature of the case but were not pursued by him at the hearing before us.  Having reviewed them, they do not raise any doubt in our minds as to the safeness of the conviction. 

21.	Accordingly, we are not satisfied that there are cogent and convincing reasons and exceptional circumstances such that some substantial injustice is manifest or that there are clear legal grounds meriting a review of the decision: Mark Bob v The State (2005) SC 808 applying Avia Aihi v The State [1981] PNGLR 81; Danny Sunu v The State [1984] PNGLR 305. 

SENTENCE

22.	It is well established that 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: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where it is obviously, but not merely arguably, out of all reasonable proportion to the circumstances of the case: William Norris v The State [1979] PNGLR 605 at 612 to 613.

23.	The applicant complains that he was treated unfairly compared to his co-accused, who were sentenced to 20 years of imprisonment. The trial judge wrongly found him to be the main player or ringleader when he was not. The trial judge failed to take into account that he was a young, first-time offender, the impact of the offence on his young family, that he was assaulted by police and his house was burnt down during the search for the stolen monies and that he only benefitted K5000. He seeks to have his sentence reduced to 15 to 20 years of imprisonment. 

24.	The applicant was about 31 at the time of the offence and cannot be regarded as youthful. The trial judge did expressly take into account that the applicant was a first-time offender. He observed that the applicant was married with two children. It is, however, well established that the impact on an offender’s family is not ordinarily a relevant consideration on sentence:  Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424. 

25.	The allegations of police brutality were serious. There was no evidence, however, about the applicant’s house being burnt down or the circumstances in which that occurred. It appears that following a voir dire during the trial, the trial judge dismissed all of the allegations of assault by the applicant or at least found that there was an absence of evidence establishing the nature of the injury or its impact. At the time of sentencing the applicant was apparently in good health. 

26.	The applicant’s main complaint appears to be that he was treated differently from his co-accused. Firstly, it is not the case that the applicant was the only person sentenced to 25 years of imprisonment. He and Casper Louis, the latter of whom pleaded guilty, were both sentenced to 25 years on the basis that they played a leading role in organising and conducting the stealing. 

27.	The trial judge found that the applicant planned the offences with his co-accused. The applicant held a relatively senior position with G4S compared to his co-accused. At the time the applicant had been employed for seven to eight years by G4S and was the Radio Room Operator. Moreover, he played a critical role in coordinating the offence from the control room, including calling his co-accused to collect the monies intended for delivery to BPNG that morning. 

28.	Applying the principles governing parity we find no error in the approach taken by the trial judge. There was no marked disparity in the treatment of the applicant having regard to his role and the breach of trust involved: Sanawi v The State (2010) SC1076; applying Mario Postiglione v The Queen [1997] HCA 26;  (1997) 189 CLR 295; affirmed David Kaya and Philip Kuman v The State (2020) SC2026.

29.	It follows that the applicant has failed to demonstrate any basis for granting the application to review his sentence. 

ORDERS

30.	We make the following orders:

(1)	The application for review of conviction is dismissed.
(2)	The application for review of sentence is dismissed.  
(3)	The convictions and sentences are affirmed.
_______________________________________________________________
Lawyer for the applicant: 	Applicant in person
Lawyer for the respondent:	Public Prosecutor