N5126

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.1198 OF 2009

THE STATE

V

TONY EMMANUEL

&

CR. 1201 OF 2009

THE STATE

V

EDWARD YAU

Wewak: Kirriwom, J
2012: 	19, 20, 23, January
17 February,
29 March,
19 November &
10 December
2013: 19 March

[NO.3]

PRACTICE AND PROCEDURE – Judgment – Sentence – Severity – Facts of prisoner's antecedents wrong – Prisoner had no prior conviction – Prisoner and co offender treated harshly on the basis of prior conviction – Sentence recalled and substituted – Original judgment varied.

PRACTICE AND PROCEDURE – Sentence - Prior conviction – Finding of guilt amounts to – Mere arrest and charge – Not prior conviction.

Cases cited:
Papua New Guinea Cases

Richard Dennis Wallbank v The State [1994] PNGLR 78 
Sir Julius Chan v Ephraim Apelis (No.2) [1999] PNGLR 187 
The State v Richard Jinagi [2011] Cr. 1020 of 2009 (23 February, 2011)

Overseas Cases

Autodesk Inc v Dyason [No.2] (1993) 176 CLR 300 

Counsel:

A Kupmain, for the State
F Lunge, for the Prisoner

RULING ON JUDGMENT RECALL

19 March, 2013

1. KIRRIWOM, J:	 On 26 November, 2012 following my return to Waigani after delivery of my decision on sentence on 19 November, 2012 in Wewak, copies of Kariko, J's written judgment on the sentences he imposed on Tony Emmanuel on 23 September, 2009 in respect of rape and deprivation of liberty charges were availed to me. Normally, this information or material must be made available to me by counsel during address on sentence. From this judgment, I immediately sighted several glaring errors in my judgment in respect of those convictions.

2. Firstly, I now stand corrected that Tony Emmanuel was sentenced on 23 September, 2009, not in 2006. This mistake led me to the conclusion that the prisoner might have been at large in 2009 and committed this murder. 

3. In April 2006 Tony Emmanuel committed rape upon the victim Linda in the bedroom of their family home at Wewak. In April 2009 he was implicated in the wilful murder of George Wosimbu with Edward Yau at Kawanumbo village, Boikin but he was not adjudged guilty and convicted of them at the time he was apprehended and charged with wilful murder, a totally different offence to the earlier charges. 

4. What is now clear to me is that at the time of his arrest for this homicide case, Tony Emmanuel had no previous convictions. I am also now well informed that when Tony Emmanuel was convicted of rape and deprivation of liberty in September 2009, he was awaiting his trial on this wilful murder charge.

5. In my decision on sentence, I was heavily influenced by Tony Emmanuel's two prior convictions which also impacted on the sentences I imposed on both prisoners. Had I been correctly assisted by both counsel on the details or particulars of the previous convictions, I would have been better informed and my sentence would have correctly reflected what I ordinarily would have imposed on both prisoners as first offenders.

6. The reason being that the wilful murder offence was not committed while Tony Emmanuel was serving punishment for another offence. He may have been facing a charge or charges but they are not to be taken into consideration as prior convictions because he was never convicted of them at the time. He was still an innocent man until proven guilty by the Court and that did not eventuate until 23 September, 2009.

7. As the consequence I recalled the matter on 10 December, 2012 and heard further submissions on sentence from Mr Kupmain for the State and Mr Lunge, who appeared as friend of court as his retainer by the prisoner had terminated following the completion of the case. Mr. Kupmain submitted that the court had power to recall its own judgment and correct any error made earlier in the interest of justice. Mr Lunge also made similar submission. 

8. Recall of judgment already pronounced by the court in certain circumstances may offend against the general rule based on public policy consideration that there must be finality to litigation once completed. In numerous cases coming before the Supreme Court by way of slip-rule application, this public interest consideration was acknowledged and it was noted from reading some leading case authorities cited in those cases that a judge has discretion to recall his earlier orders if in his determination that he 'had erred in a material matter in his approach to the case'- see Richard Dennis Wallbank v The State [1994] PNGLR 78 which referred to Autodesk Inc v Dyason [No.2] (1993) 176 CLR 300 and Sir Julius Chan v Ephraim Apelis (No.2) [1999] PNGLR 187 which also referred to the same Australian High Court case. 

9. Thus having appraised myself of facts that counsel had not earlier placed before me and who indeed misled me, rather than awaiting an appellate court to correct the mistake, justice was begging for correction and it was within my power to correct it. And so I did that. This was particularly so because at the time of this offence, the prisoner Tony Emmanuel had not been convicted of any offence. He had no priors recorded against his name.

10. Since his arrest and detention for this crime, it is now common knowledge that on 24th September, 2009, Tony Emmanuel then referred to as Anton Emmanuel was convicted of one count each of deprivation of liberty and rape and sentenced to a total term of twelve years imprisonment. That conviction and sentenced followed after the arrest of the prisoner for this wilful murder charge on 12 April, 2009 some four to five months before he was convicted for those serious sexual offences. 

11. And this stems from my earlier decision in The State v Richard Jinagi [2011] Cr. 1020 of 2009 (23 February, 2011) in which I held that there must be actual finding of guilt by the court to constitute a prior conviction, not a mere arrest. A person is still innocent until the court has found him guilty and convicted him. 

12. This extract from that case forms the basis of this sentence review:

"An aggravating factor in a sense in this case, is that at the time the prisoner went around drinking while driving from one corner of Vanimo town to another with his friends and ultimately got himself into this mess is that he was not a completely free person. He was on bail while awaiting trial on charges of abduction and rape. He has since been convicted of rape on 10 March 2010 and is presently serving his sentences of 18 years imprisonment. I discuss this conviction in the succeeding paragraph in the context of whether that conviction can rightly be considered a prior conviction for purpose of aggravation of the present conviction.

In normal circumstances, when a person with a prior record is apprehended for a crime, on conviction for the new offence, he is said to have not learnt his lesson despite the earlier conviction and offended again. So he is considered to be a hard case on the way to becoming recidivist. Courts must take a very strong view of this trend of criminal behaviour. 

In the case of this prisoner, at the time he committed this offence, he was not a convicted person and therefore did not have a prior conviction against his name. However since the commission of this offence, he has been convicted for the earlier offences and is serving time. State submits that the earlier conviction is a prior conviction for purpose of punishment for this crime. What meaning then does one apply to the purpose for taking prior convictions into account when sentencing an offender for his crime?

Probably the best way to address this issue is when does an offender's prior conviction come under consideration for purpose of punishment for a latter offence, is it at the time of the offence of the latter offence or at the time of conviction for the latter offence? The logical reasoning process is that the offender's prior conviction for purpose of sentencing for a latter conviction must be reckoned from the date of offence of the latter offence. Afterall, it is the offending behaviour that the court is concerned with; conviction is the end result of the due process following the offender's criminal behaviour that is the subject of the court's determination. In essence therefore, a person's prior conviction only becomes relevant for sentencing in a latter case, if there is a recorded conviction against his name as at the time of offence of the subsequent criminal act.

The essence of the court receiving and considering additional materials on sentence such as antecedent reports or sworn affidavits or statutory declarations on matters pertaining to the prisoner and the case is that the sentencing authority has before him all relevant information that is necessary to assist him to impose a just and fair punishment on the prisoner, punishment that is not too harsh or too soft. And where the prisoner has strings of priors that he is already serving time for them, they must be properly taken into account when the court considers the penalty on the subsequent conviction so that the cumulative effect of all the sentences must not be crushing but such as to assist the prisoner in his reformation. The relevant provision that empowers the court to receive such evidence is section 596(4) of the Criminal Code which provides: 

"(4)	Before passing sentence, the court may receive such evidence as it thinks proper in order to inform itself as to the proper sentence to be passed.

Applying this reasoning process, I cannot treat the prisoner as having had a prior conviction at the time of commission of this offence he now awaits sentence for. He was a first offender albeit awaiting trial on pending charges. The fact that he has since been convicted for those pending charges does not alter this fact."

13. Tony or Anton Emmanuel was in the same situation as Richard Jinagi when he committed this offence. He was on bail for that earlier offence that was still pending trial.

14. It was quite obvious from my judgment delivered on 19 November, 2012 that my mind was heavily influenced by the fact of the prisoner Tony Emmanuel having prior convictions of serious offences of deprivation of liberty and rape when he was arrested for wilful murder and convicted on it. The court took a serious view of this; hence imposed the sentence it did.

15. The true situation was that the prisoner Tony Emmanuel did not have a prior conviction. He was arrested for those offences, but the case was still pending when the subsequent arrest was made. Following this arrest the prisoner was tried for those earlier offences and convicted and sentenced. 

16. In the circumstances, I deduct ten years from the sentence I had earlier imposed on Tony Emmanuel which reduces his head sentence from fifty years to forty years.

17. With respect to Edward Yau, his sentence was also influenced by the view court held of Tony Emmanuel's punishment. In the circumstances I cannot consciously allow Edward Yau's sentence to remain unaltered. I must also reduce his sentence by ten years which means that Edward Yau will now serve thirty years.

18. But I want to reiterate what I stated already, Edward Yau and those of his family members who escaped while awaiting this trial must be apprehended and brought to face the court. When people like them flout the law and barricade themselves in the village after escaping from custody and police feel inadequate and afraid in enforcing the law on them in the village, the public will see this and lose confidence and respect for the police and for the rule of law as the criminals take the upper hand in the fight against crime. If the police cannot enforce the law without fear or favour, who else is going to do it? Police have a responsibility to go into Yawanumbo village and bring those escapees back to court to be dealt with so that normalcy can return to the community.

19. The original judgment on sentence is therefore hereby amended to reflect the submissions made by counsel with exclusion of any aggravating comments and views held in reference to that prior conviction and substituted sentences for both prisoners for the reasons given.

Orders accordingly.

 Public Prosecutor: Lawyers for the State
Edward Lunge: Lawyers for the Defence