Java v The State [2002] PGSC 17; SC701 (20 December 2002)

SC701

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCR No. 4 of 2002

BETWEEN:

MAX JAVA

Applicant

AND:

THE STATE

Respondent

Waigani: Kapi DCJ, Sheehan J and Davani J
2002: 3rd October, 20th December

CRIMINAL LAW – Judicial Review under s 155(2)(b) of the Constitution – Conviction of murder on plea of guilty – Review against sentence.

Counsel:
Appellant in person
K. Umpake for the State

20th December 2002

BY THE COURT: This is an application for judicial review brought pursuant to s 155(2)(b) of the Constitution in respect of a sentence imposed by the National Court.

On the 12th July 2001, the National Court sitting at Popondetta convicted the applicant Max Java of murder following his plea of guilty to that charge. He was sentenced to twenty years IHL. This application seeks to review his sentence.

The background to the charge against the applicant are that on the afternoon of the 4th July 2001, the applicant returned home to his block at Igora near Popondetta to be told by his wife that Jimmy Roger Maino, the deceased had destroyed their food garden. The applicant then went looking for the deceased armed with a grass knife. The deceased on seeing the applicant coming, started to run but the applicant pursued and got up with him and cut him several times with a grass knife causing severe injuries. The deceased died of massive blood loss from the injuries infected on him by the applicant.

Following the fatal assault on the deceased, the applicant went and reported what he had done to the Police Station at Popondetta. He told them that he had not wanted to kill but only to paralyse the deceased as a punishment for what he had done. He maintained that story in the record of interview and when charged with murder before the National Court readily pleaded guilty.

In mitigation counsel for the applicant in the National Court pointed out that the applicant had no previous convictions and that through the destruction by the deceased of the applicant’s food gardens did not amount to an excuse or mitigation in law, the actual provocation was nonetheless severe.

Having heard the applicant’s submission and those in response by Mr Umpake for the State, we are satisfied that the trial judge did in fact take into account all matters necessary in assessing sentence, including such mitigation as provocation cited and the young age of the appellant.

In considering the sentence, we bear in mind that this is not an appeal but an application for judicial review under s 155(2)(b) of the Constitution. The applicant failed to file an appeal within the 40 days limitation period. Therefore, the position is governed by the principles enunciated in Avia Aihi v. The State [1982] PNGLR 44. The applicant is required to satisfy two things before leave may be granted to review. First an applicant must satisfactorily explain why he allowed the 40 days to expire, and second, that there is merit in the review.

In respect of the first matter, the applicant must advance "special and substantive reasons" or "very exceptional circumstances", or "satisfactorily substantial reasons" or "cogent and convincing reasons and exceptional circumstances". In considering this matter we appreciate that the appellant is unrepresented and has conducted the application without the assistance of a lawyer.

As to the second matter, the applicant must show good merit. In considering this matter, we would adopt the principles in respect of appeal against sentence, namely, the applicant must demonstrate error on the part of the trial judge in exercising the sentencing discretion. We can not find any identifiable error nor can we infer any error from the length of sentence imposed in this case. We ourselves sitting as single judges may have imposed a lesser penalty but this is not a ground on which we should interfere with the sentence. Having regard to the prevalence of violent offences in the community, we cannot conclude that the sentence is manifestly excessive.

We are not satisfied that the applicant in the present case satisfies the requirements and therefore we would not grant leave for judicial review and dismiss the application and confirm the sentence of 20 years in hard labour.
_____________________________________________________________________
Appellant in person
Lawyer for the State: Public Prosecutor