SC2864

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO. 27 OF 2024

BETWEEN
JASON KANUFA
Appellant

AND
THE STATE
Respondent

WAIGANI:     BONA J, LIOSI J, CROWLEY J
1 AUGUST 2025; 26 MARCH 2026

CRIMINAL LAW – Supreme Court – Appeal against conviction and sentence  – Whether defense raised in confessional statement should have been explained to Primary Judge- Whether defence raised in confessional statement should have been considered by Primary Judge- Whether Primary Judge should have set aside guilty plea – Whether reference to defacto provocation should have been explained to Primary Judge- Duties of Prosecutor on sentence- Obligations of Defence Counsel on sentence– Appeal against Conviction dismissed- Appeal against sentence upheld- Appellant resentenced. 

Facts 
The appellant pleaded guilty to murder for stabbing a man outside a nightclub in the early hours of the morning. She was apprehended the next day and gave a confessional statement and a record of interview when she described being threatened and assaulted by the deceased which prompted her to act. She subsequently agreed to plead guilty. Though defacto provocation was submitted as a relevant consideration on sentence, no details were given either by the prosecution or the defence. The judge did not consider defacto provocation on sentence. 

Held:
1.	A Judge does not have to set aside a plea where the deposition discloses an arguable defence only where it is not safe and proper to accept it.
2.	It is the obligation of the prosecution to ensure the brief facts explain the basis for a submission of defacto provocation.
3.	It is the obligation of defence to properly articulate the facts that justify a submission of defacto provocation.
4.	Sentencing discretion miscarried and the court can resentence the prisoner

Cases cited

Gabriel Laku v The State [1981] PNGLR 350
Peter Sari [1990] PNGLR 48
Yalibakut v State [2006] PGSC 27; SC890
Korop v The State [2018] PGSC15; SC1670
Norris v The State [1979] PNGLR 271
Beng v The State (1977) PNGLR 155

Counsel

Mr. N Hukula for the appellant
Ms. E Kave for the respondent

DECISION ON APPEAL

1.	BY THE COURT: This is an appeal against conviction and sentence. It arises out of a plea of guilty to a charge murder under s300 of the Criminal Code. For the reasons that follow we do not agree that the primary judge erred in accepting the plea. However, defacto provocation should have been considered on sentence.

Background

2.	The offence occurred at around 4am on the morning of 20 June 2020. A thirty-year-old man, Sebastian Auai (the deceased) died from a stab wound in his upper left chest that punctured his lung. The deceased had been stabbed once with a K1.00 knife by the Appellant, a 20-year-old woman. The incident happened on Dark Street 6 Mile in Port Moresby outside a house where a disco had been playing.

3.	The Appellant was found and was taken to the 6 Mile Police Station where she was locked up. Later that day a member of the Police Homicide squad took her to the Boroko Police Station where they obtained her confessional statement. 

Grounds of Appeal
4.	The grounds of appeal are:

a.	The learned primary judge erred in law when he failed to take note of the appellant raising a defence of self defence against attempted rape which was raised in her Confessional Statement and Record of Interview.
b.	The learned primary judge erred in law when he failed to enquire with the defence counsel whether the appellant would be foregoing or pursuing the statutory defence found in her confessional statement and Record of Interview. 
c.	The learned primary judge erred in law and fact in not considering the strong extenuating circumstances that appellant stabbed the deceased out of fear of being raped 

5.	These grounds raise two questions on appeal: 

a.	whether the primary judge should have set the plea aside because there was a possible defence disclosed in the depositions; and
b.	whether the sentence was manifestly excessive.

6.	To properly understand these reasons, it is necessary to consider what was contained in the depositions tendered on sentence. Further, it is necessary to understand how the sentence unfolded before the Primary Judge and what submissions were made by counsel. 

Depositions

7.	The Appellant was arrested on the day of the incident and gave a confessional statement. In that she said she and her friends attended the disco. Later in the night, her friend had left, and the Appellant was by herself. 

8.	She went outside and saw the deceased whom she knew. She called a greeting to him. The deceased came over to her, grabbed her shirt and said “look at the follow boys come, now they are going to rape you”. The Appellant replied, “you know me and I know you and why are you doing that to me”? The deceased then swore at her. He said she “used to drink like a man” and “all the boys would have a turn to have sex with” her. The deceased punched the Appellant, put her on the ground and kicked her. The Appellant then decided to defend herself using the K1.00 knife that she was carrying. She stood up and swung the knife thinking she would “...hurt the [deceased] on the arm just to stop him so I can escape but somehow I missed his arm and stabbed him on his chest”. She then ran to near her house, where she “hid beside the drain until dawn broke”.
 
9.	The police obtained three witness statements from the young men who were outside the disco on the night in question. They saw and heard the deceased and the Appellant interact. Their statements did not support the Appellant’s version of how the murder occurred. Therefore, the Prosecution had a basis for proceeding on a murder charge.

10.	 On 24 September 2020 the Appellant participated in a Record of Interview. In that interview she told a similar story to her Confessional Statement. When asked why she had stabbed the deceased, she said “He grabbed me and told the four boys to rape me” (Q43). At Question 44 she was asked “Tell me why did he tell the four boys to rape you?” She answered “That time I was not drinking, he saw me and told me that I use to drink beer like a man, and talked like a man and now I’ll be in the hands of men”. 

11.	 In answer to Q47, whether she knew the deceased, the Appellant said “yes”. When asked to explain how they knew each other (Q48), she said “we lived together, we are neighbours”. In Q49 it was put to her “We are coming to the end of the interview, and there Sabastine Auai on is hip with a small knife and he fell to the ground... Do you have anything to say?” to which she answered “no”. When it concluded, the Appellant signed the Record of Interview 

First Day of the Sentence 9 April 2024. 
12.	 The matter came on for sentencing on 9 April 2024. The committal file containing all the above material was tendered. By this time the Prosecution had accepted a plea to murder under s300 rather than wilful murder (s299).

13.	 The Prosecutor read the brief facts for the court. They were: 

On Friday 19 June 2020 there was a disco hosted at Dark Street, 6 Mile, National Capital District. Many people attended, including the accused Jason Kanufa. The deceased Sebastian Auai also went to the venue with others but remained outside. The party started at about 10pm and lasted till about 4am the next morning. 
Between 3am and 4am on Saturday 20 June 2020 a fight broke out inside the disco arena and the accused came out. She saw the deceased and his friends who were standing outside and asked them to go ands check one of her sister but the boys refused as they did not want to be part of the problem. The accused then got mad and swore at the boys and when the deceased heard this, he was not happy and argued with the accused. 
After this the accused walked ahead down the street. The deceased followed a few minutes after. At the time the deceased’s nephew, Aaron David who was also on the street followed behind his uncle trying to catch up with him. He also saw the accused standing at the end of the road. The State says this was when the accused turned to the deceased, swinging a small kitchen knife, stabbed the deceased and ran away.
The autopsy report shows the direct cause of death to the left hemothorax. This was the result of an incision to the upper lobe of the left lung due to a penetrating stab wound to the left anterior chest. Therefore, the State says when the accused armed herself with a small kitchen knife and stabbed Sabastian Auai on the left side of his chest then fled, she intended to cause grievous bodily harm to him which resulted in his death. Her actions consequently contravened section 300 subsection (1) paragraph (a) of the criminal code.  
14.	 The primary Judge read these brief facts to the accused and confirmed that she understood them. He then took her plea of guilty. The Judge entered a provisional plea of guilty then said “...sorry, defence, any application? To which the defence counsel responded “No application. Plea is consistent.” 

15.	 The prosecutor then tendered the committal file. The Judge said “Jason Kanufa, this file that the police have prepared. I will read the file and determine if indeed your plea is consistent”. 

16.	 The prosecutor then said: 

Just in assistance to the Court, the particular committal depositions showing the evidence against the prisoner is the statement of Aaron David dated 22 June 2020, admissions in the record of interview, question and answer 47 and 48, as well as the autopsy report by Dr Joe Norrie.

17.	 The Prosecutor did not direct the Primary Judge to Q43 and Q44 of the Record of Interview where the Appellant had repeated her story of the deceased’s threats to rape her.

18.	 The Learned sentencing judge said: 

I have read the file that the police has prepared, the state has tendered into this court. I confirm your provisional plea of guilty of murder and I convict you of murder pursuant to section 300, subsection (1)(a) of the criminal code. 

Pre-Sentence Report

19.	 The matter was then adjourned for the provision of pre-sentence report. That report at paragraph [12(b)] under the heading Circumstance of the Situation read in part: 
After the Party she was afraid of going home alone so she asked the deceased (Sebastian Awai) to accompany her to her house with other four street girls. She stated that deceased was heavily drunk and was high on drugs (marijuana). While on the way the deceased mentioned that he was going to take her (offender) away to moka mountain and rape her with the help from the street boys as she drinks like a man. The offender fearing of being carried away by the deceased ran on followed by the deceased in hot pursuit and as she was grabbed from behind by the deceased, the offender took her small knife and without looking trying to inflict pain on his arm to let her go stabbed the deceased on his chest. She stated she had no intention of killing him as they are very close family members and good neighbors”. 

Second day of Sentence 30 April 2024 

20.	 The Court reconvened on 30 April 2024, the Pre-Sentence report was tendered, and the allocutus administered. The Appellant merely apologised to God, to the court, the constitution, the deceased’s family, her family and her daughter. She did not mention any of the circumstances that she had in her Confessional Statement. 

21.	 The Court received both written and oral submissions from the prosector and the defence counsel. The Judge then gave his reasons (addressed below) and sentenced the Appellant to 19 years hard labour. 

Should the primary judge have set the plea aside because there was a possible defence disclosed in the depositions?

22.	 In Gabriel Laku v The State [1981] PNGLR 350, (‘Laku’) held that the Judge has a duty to accord the accused their constitutional right to the full protection of the law. 

23.	 In Yalibakut v State [2006] PGSC 27; SC890 this Court set out some foundational principles of sentencing. First, there is no doubt that the Supreme Court can review the exercise of discretion by a judge to accept a guilty plea. Second, a judge must always be sure that an accused has properly pleaded guilty and third, an accused person is not irretrievably bound by a plea of guilty. (at [34]).

24.	 Later in that case the Court summarised a number of principles and practices when dealing with a guilty plea. Below is a relevant extract.
... 
(g) If the accused says [the charge] is true the judge enters a provisional plea of guilty subject to reading the committal court depositions.
(h) The judge examines the depositions to check that there is evidence of the elements of the offence.
(i) If there is evidence of the elements of the offence, and the judge is satisfied that it is safe and proper to accept the plea, the judge formally accepts the plea and convicts the accused.
...
(l) If at any stage of the process, from arraignment to formal entry of the sentence, the accused or the offender says or does anything to taint the guilty plea or make it appear equivocal, or if the judge observes something in the depositions that call the guilty plea into question, the judge should vacate the guilty plea. (Yalibakut v State [2006] PGSC 27; SC890 at [40]). 

(Emphasis added)

25.	 In Yalibakut there was a question as to whether the accused understood the charge he was pleading guilty to. The Judge arraigned the accused twice to satisfy himself that the accused properly appreciated the elements alleged against him. However, there was no evidence in the depositions regarding an element of the offence. The only evidence for that element was the accused plea. Therefore accused’s plea was the only basis on which he could have been convicted. Thus, the primary Judge had to be especially careful in accepting it. In these, quite unique, circumstances this Court identified the principles that guide judges exercise of their sentencing discretion. 

26.	 That is not the case here. There was information in the depositions that provided evidence for every element of the charge of murder. The police had gathered three statements of eye-witnesses who had between them, given first-hand accounts sufficient to justify a murder charge. 

27.	 But the Court in Yalibakut went further and mandated that a primary Judge must also look through the depositions for evidence which supports innocence. We take a more nuanced view. Certainly, in situations where the accused is unrepresented, the onus is on primary Judge to ensure the accused constitutional rights are not infringed. In such a case the Judge is duty bound to look at the depositions with an eye to evidence that may give rise to a defence. In the (almost) twenty years since Yalibakut was decided, the level of legal representation has increased. Nowadays, rarely are accused unrepresented. In circumstances where a lawyer is appearing, the judge is not solely responsible for the protection of the accused’s human rights. The judge is entitled to rely on the competence of a duly qualified lawyer to have done their job.

28.	 The Appellant’s counsel specifically directed the court to two cases; Peter Sari [1990] PNGLR 48 (Peter Sari) and Korop v The State [2018] PGSC15; SC1670 (Korop). Defence Counsel deployed these authorities to demonstrate the sentencing courts responsibility to vacate a guilty plea when a valid defence is raised. That proposition is not in doubt. This Court has repeated it on many occasions. But the present case has a slightly different facts from Peter Sari and Korop which, in our opinion justifies the actions of the primary Judge in this case. 

29.	 In Korop the accused had clearly raised the defence of self-defence in the allocutus but the Judge had failed to reacted. On that occasion, this Court set aside the conviction and remitted the matter to the National Court for a trial. That is consistent with a long line of authority including Yalibakut. But that is not what occurred in this case. 

30.	 The second case raised by the Appellant’s counsel was Peter Sari. In that case the primary Judge was told at a call over, the matter would be a plea of guilty. His Honour read the depositions in preparation and noted that the depositions did not contain sufficient evidence to sustain a conviction. When the matter came on for sentence the accused pleaded guilty and the defence made no application to set the plea aside. The primary Judge himself set the plea aside using his power under the constitution to do so. 

31.	 The case before the Court is different from both Korop and Peter Sari. Here the Judge, having taken the plea was told by counsel for the defence that the plea was consistent with his instruction. Further, when the allocutus was administered, the Appellant made no mention of a belief that she was defending herself thus there was nothing to enlivened the principle in Yalibakut or Korop. As she was legally represented the Primary Judge was entitled to rely on what he was told and not bound to investigating the depositions looking for a possible defence.  
 
32.	 That approach is consistent with the obligations identified in Laku. The protection of the Appellant’s constitutional rights was not solely the responsibility of the Primary Judge but was also of her legal representative and the prosecution. Through their obligations to the Court, the lawyers involved also had a part to play in the protection of Appellant’s constitutional rights. 

33.	 For these reasons we reject the argument that the Primary Judge fell into appealable error for failing to set aside the plea that had not been raised either by the defence counsel, the Appellant during her plea or in the allocutus. As such the appeal against conviction fails. 
Appeal Against sentence
34.	 The Appellant submitted that “The learned primary judge erred in law and fact in not considering the strong extenuating circumstances that the appellant stabbed the deceased out of fear of being raped”. 

35.	 An appeal against sentence to the Supreme Court is with the leave of the Court unless the sentence is one fixed by law. On such an appeal the Appellant must show some error has occurred which effected the judges exercise of discretion (Norris v The State [1979] PNGLR 271)

36.	 In deciding whether the Primary Judge did not consider the “strong extenuating circumstance” in reaching his sentence it is necessary to consider the submissions that were made. 

Prosecutions Submissions on sentence

37.	 The Prosecutor provided both written and oral submissions on sentence. In the Prosector’s written submissions at [20] it read “Factors in mitigation were that she was a first time offender, there was de facto provocation, ......”. Nowhere in the written submissions was this explained. Confusingly the Prosecution’s written submission provided two lists of mitigating factors; one at paragraph [15] which did not list defacto provocation an another at paragraph [20] which did list defacto provocation as a mitigating factor. 

38.	 In her oral submissions the Prosecutor directed the sentencing Judge to paragraph [15] of her written submission but not paragraph [20]. Further she did not mention or explain the defacto provocation in her oral submissions. In fact, her oral submissions were inconsistent with defacto provocation. She submitted that one of the aggravating factors was that “there was some level of preplanning in her having to wait for the deceased at the road and with a knife”. This submission was disingenuous. It was not expressed in the Brief Facts and is at odds with a submission that there was defacto provocation in that, a person cannot preplan to be provoked. If the Prosecution was accepting defacto provocation then the fact that the Appellant was armed and waited for the deceased was coincidental.

39.	 The Prosecutor was obliged to provide evidence to support her statement, which she failed to do. The Prosecution are not entitled to make submissions to the Primary Judge that are inconsistent with these Brief Facts. Further, in circumstance where the Prosecution accepted there was defacto provocation, that should have been reflected in the Brief Facts (which formed the basis of the plea). Unfortunately, there was no mention of it or any facts that would support it in the Brief Facts. 

40.	 It seems that there was some agreement reached between the Prosecution and Defence regarding this, as both sides submitted on it. Unfortunately, as his sentencing remarks make clear, the primary Judge did not take these submission into account. 

Defence Counsels Submissions

41.	 The defence counsel was no better. His written submissions listed “Provocation by deceased in the nonlegal sense” but nowhere was this explained. In his oral submissions, the defence counsel merely repeated as a mitigating factor “There was provocation by the deceased in a non-legal sense and it was a spur of the moment offence”. The defence counsel did not provide the Court with any fact or explanation to support those statements as he was obliged to. 

The Sentencing Judge

42.	 The learned Sentencing judge then moved to sentence. In those remarks he said the Appellant:

a.	“… accepts responsibility without any qualification for the death of the deceased. It is an unequivocal plea”.
b.	“She is not a stranger to the deceased, having inter marriage relations depicted out by the pre-sentence report filed. Therefore, to swear at him and turn him into agitation but not violence is in his favour. It is against her to take violence in this manner”
c.	“She had no justification for the way that she acted and stabbed him. He was not threatening her nor was he in any position to bring harm to her”.
d.	“... it is relevant to consider range and tariff set out by Mana Kovi v The State [2005] PGSC34, SC 789, which level this out as category 2 because there is use of the knife with intent to do grievous bodily harm. There is viciousness in the execution of the offence but is not as grave as Kama’s case” [Simon Kama v The State [2004] SC740]
e.	“She stabbed him in one of the most valuable parts of the human body where the lungs are under the chest. And the facts to which she pleaded guilty to do not depict that she was justified to stab as she did nor is it the case similar to the State v Haggai [2005] PGNC60, N2913. “He was not swearing at you. He was not trying to fight you. He did not have a knife or a weapon on him.”
f.	“You were not challenged or provoked to fight as in State vs Harisu [2006] PGNC 137, N3168...”
g.	“He was not swearing at you. He was not trying to fight you. He did not have a knife or a weapon on him. You had a knife”

43.	 It is clear from these passages that the Primary Judge did not take into account defacto provocation that both parties had identified was a relevant consideration on sentence. 

Should the Primary Judge have taken defacto provocation into account?

44.	 In failing to consider defacto provocation the primary Judge fell into appellable error. It was a relevant consideration and, as his remarks make clear, he proceeded on the basis that the attack was unprovoked. He described the attack in such terms several times. In doing so the Primary Judges discretion was miscarried.

Resentence

45.	 Section 23(4) of the Supreme Court Act 1975 provides that: 

...on an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

46.	 As such we are powered to re-sentence the Appellant. 

47.	The starting point for an offence of murder is the guideline judgment of Category 1 of Manu Kovi v The State [2005] PGSC34, SC 789 (Manu Kovi) That decision identifies that for an offence of murder where there is no weapon used, minimum force, little or no preplanning and the absence of a strong intent to do GBH the starting pointy is 12 to 15 years. 

48.	 Category 2 is a range of 16 to 20 years for murder where there is no strong intent to do GBH, a weapon is used, some pre-planning and some elements of viciousness. 

49.	 Both parties at the sentence submitted that this case fell between Category 1 and Category 2 of Manu Kovi. In fact, with the exception that a weapon was used, this offence, taking into account the defacto provocation has all the criteria of Category 1. As Category 1 ends at 15 years and Category 2 started at 16 year it seems that that is around where the head sentence should fall. As the characteristics are closer to Category 1 than 2 we consider that the appropriate head sentence should be 15 years.  

50.	 The Appellant was arrested on 21 June 2020. She was sentenced on 30 April 2024. She several 3 years 10 months and 9 days pre-sentence custody. In the exercise of our discretion we choose to deduct the pre-sentence custody from from the head sentence of 15 years. Therefore we re-sentence the Appellant to a head sentence of 11 years 2 months in custody. 

51.	 Again in the exercise of our discretion and reflecting the pre-sentence report and the defacto provocation we have decided to suspend that term of imprisonment. The Primary Judge spent a considerable time explaining why he did not consider this case appropriate for a suspension. But, it seems to us, his Honours considerations would have been materially affected in that regard had he considered that defacto provocation was present. That would mean that there was less need for personal deterrence and a higher likelihood of rehabilitation because the violence exhibited was situational (i.e. the provocation led to the reaction). Absent the specific situation (in this case the provocation) and the Appellant is not violent and not a threat to the community. 

52.	 The Presentence report said:
...having gone through all necessary process of collecting information on the offender, it is seen that the offender has no prior convictions of any other offence. The offender stated that she is very sorry for what she has done as she said that she had no intention of killing the deceased And asked for courts mercy and leniency. The community source also indicates that offender is not a threat to the community and others and begs for court’s mercy and leniency.

53.	 Ultimately the Pre-Sentence Report recommended “The offender is a suitable candidate to be given suspended sentence with conditions under Probation supervision.”

54.	 Considering the conclusions reached in the Presentence Report, the defacto provocation, the other mitigating and extenuating factors, we consider that it is appropriate to suspend the sentence after the Appellant has served a period of 5 years. 

55.	To be clear, we take the starting date of the sentence as being 30 April 2024.

Conclusion
56.	 For the reasons set out above we are not satisfied that there is, in all circumstance, a reasonable doubt as to the safeness of the verdict (Beng v The State (1977) PNGLR 155). The appeal against conviction is dismissed. 

57.	 However, we are satisfied that the Primary Judge failed to take into account a relevant consideration and as such his discretion miscarried. We grant leave to appeal against the sentence and uphold that appeal. We re-sentence the Appellant to 15 years imprisonment (less 3 years 10 months and 9 days presentence custody) and suspend that term after the Appellant has served a period of 5 years. 
ORDERS
(1)	The Appeal against conviction is dismissed.
(2)	 Leave to appeal against sentence is granted.
(3)	 Appeal against sentence is upheld.
(4)	 The sentence of 30 April 2024 is set aside.
(5)	 The Appellant is sentenced to a period of 15 years imprisonment. 
(6)	 Presentence custody of 3 years 10 months and 9 days is deducted from that head sentence leaving 11 years 2 months to be served.
(7)	 The sentence is deemed to have commenced on 30 April 2024.
(8)	 That sentence is suspended after the Appellant has served five (5) years imprisonment.
__________________________________________________________________
Lawyer for the appellant:    Public Solicitor
Lawyer for the defendant:  Public Prosecutor