State v Ngasele [2003] PGSC 2; SC731 (3 October 2003)

SC731

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO.17 of 2002

THE STATE

-V-

NELSON N. NGASELE

KOKOPO: KIRRIWOM, KANDAKASI, BATARI JJ.
2003: 30th September
3rd of October

APPEAL – PRACTICE & PROCEDURE – Preferment of charges – Powers of the Public Prosecutor - The Public Prosecutor has an absolute power to decide and present a charge he is able to prove – That power is not subject to any direction or control from anybody – s. 525(1)(a) of the Criminal Code.

CRIMINAL LAW – Appeal against sentence – Armed gang robbery with threats and actual violence on a street – Firearm and other weapons used to execute robbery and cause damage and injury to victims and property – Value of items stole substantial and partially recovered – Guilty plea – Sentence of 5 years imposed by the National Court – Well below range – No identifiable and error warranting appeal by appellant – If there was cross-appeal by public prosecutor, sentence could have been increased - Appeal dismissed – Criminal Code s. 386.

Facts:

The appellant was part of an armed gang, which conducted two robberies in the night. Actual violence with damages and injury to persons and property were occasioned to secure the robbery. Cash and goods of substantial value were stolen of which, only a part was recovered. The appellant was a first time offender and pleaded guilty to a charge of armed robbery. A sentence of 5 years in hard labour was imposed against him. He appealed against his sentence claiming that the sentence was excessive, it did not reflect the factors in his favour, that he was charge with an offence different to what the police indicated he would be charged with and that no evidence was presented against him.

Held

1. The Public Prosecutor has an absolute discretion to prefer and present a charge he is able to prove. A representation by police to an accused as to the likely charge to be brought against him or her is not binding on the Public Prosecutor.
   
2. The record of proceedings show that the learned trial judge took into account both the factors for and against the appellant that were fairly put before him. There was therefore no error in the exercise of the learned trial judge’s sentencing discretion that requires this Court’s intervention.
   
3. The sentence of 5 years was well below the tariff or range of sentences in similar cases. If the Public Prosecutor cross-appealed, the sentence would have been increased to one over 10 years.
   
4. For these reasons the appeal was dismissed and the sentence of the National Court was confirmed.
   

Cases cited:
The State v. Jack Gola and Mopana Aure [1990] PNGLR 206.
The State v Jason Dongoma (unreported judgement delivered on 13/12/00) N2038.
Gimble v. The State [1988 – 89] PNGLR 27.
Tau Jim Anis & Ors v. The State (Unreported judgement delivered 25/05/00) SC642.
Acting Public Prosecutor v. Don Hale (unreported judgement delivered on (27/08/98) SC564.
Hawai John v. The State (unreported judgement delivered on 02/04/98) SCR 09 of 1995.
The State v Gilbert Peter Diga (unreported judgment delivered on 02/04/98) SCR 09 of 1995.
The State v Danny Pakai (unreported judgment delivered 17/12/01) N217.
The State v Kennedy Arus (unreported judgment delivered on 16/03/01) N2081.
The State v Fabian Kenny (unreported judgment delivered on 16/05/02) N2237.
The State v Collin Amoko (unreported judgment delivered 18/04/02) N2214.
The State v Jamie Campbell Fereka (unreported judgment delivered 07/04/03) N2359.

Counsel:
Appellant in Person.
Mr. R. Auka for the Respondent.

3rd October, 2003

BY THE COURT: Nelson Ngasele, you are appealing against a sentence of five years less the time you had already spent in custody awaiting your trial for armed robbery. The National Court imposed that sentence against you on 22nd March 2002. You lodged your appeal on the 22nd of April 2002. Clearly your appeal is well within time. But the Supreme Court registry treated your appeal as a review matter. That is obviously an error. We therefore, proceed on the basis that this is an appeal within time.

In your notice of appeal, you set out four grounds. These are:

1. You were charged with illegal use of motor vehicle but when you appeared before the National Court it was changed to arm robbery.
2. There was no evidence presented against you by the police investigator or the prosecutor.
3. The Court did not consider your submission that you were not the person that committed the offence.
4. The Court did not take into account the fact that you were a first time offender and you made it easy by your guilty plea.
   

We will address each of these grounds individually, starting with the first ground first.

Change of Charge

In your submission, you refer to representations made to you by the police prior to the formal presentation of the indictment against you in Court. You claim that the police investigator told you that you would be charged with one count of illegal use of a motor vehicle and one count of armed robbery. You were however, surprised when two charges of armed robbery were presented against you when you appeared before the National Court.

It is settled law that the Public Prosecutor as an absolute power to decide and present whatever charge he considers the state will be able to prove against an offender. That power is not subject to any direction or control from or by anybody. Section 525 (1)(a) of the Criminal Code gives him that power. This has been acknowledged and affirmed by a number of judgements such as The State v. Jack Gola and Mopana Aure[1] and The State v Jason Dongoma.[2]

In your case, if indeed the police told you that you would be charged with one count of illegal use of a motor vehicle and one count of armed robbery. That did not and could not bind and or prevent the Public Prosecutor from settling on and presenting the charges he preferred and did present against you. He was within his powers when he presented those charges against you. Accordingly, we dismiss this ground of your appeal as having no merit.

There is a further reason for us to dismiss your appeal. Appeals to this Court concern decisions of the National Court. In that context, only where an appellant demonstrates a clear case of a trial judge falling into an identifiable error in arriving at a decision can this Court allow an appeal. Hence, this Court’s appellate jurisdiction can not be invoked in matters other than a review of a decision of the National Court based within the confines of the record of the proceedings. Matters such as communications between the parties or their counsel and their conduct, unless they have been properly raised and they have been treated as an issue before the National Court, which was not the case here, they are matters not open for review on appeal.

No Evidence Presented

Moving onto your second ground of appeal, we note that you are claiming the police investigator and the prosecutor did not present any evidence again. In your submissions, you say that the state witnesses repeatedly stated that certain dangerous weapons were used but none of them were produced.

Our perusal of the records of the proceedings shows that, when the matter went before the National Court, you pleaded guilty to two charges of armed robbery against you. The only other thing you said when pleading guilty to these charges was that, you did not carry any gun but a bush knife in relation to the first robbery and in relation to the second robbery, you said you were in the vehicle.

Given your guilty plea, the police investigator, the Public Prosecutor and or the State was not under any obligation to produce the weapons. This is because, there was no contest that weapons were carried and used to commit the robberies. Accordingly, we find this ground of appeal is without merit and we therefore dismiss it.

Failing to take into account mitigating factors.

Turning now to your third ground of appeal, we note that your claim is that a number of factors operating in your favour were not taken into account. Two of these factors were your guilty plea and being a first time offender. These were in fact taken into account by the learned trial judge. You claim however, that the learned trial judge should have also taken into account your claim of being assaulted by police, but His Honour did not do so.

This requires a close examination of what you and your lawyer put before the learned trial judge, then what factors the learned trial judge took into account and what factors, he did not take into account. Our perusal of the record of the proceedings before the National Court clearly shows that, the learned trial judge took into account all of the matters you and your lawyer put before him. This includes your guilty plea, you were a first time offender, the robbery was not planned but a spare of the moment act under influence of alcohol and that the vehicle stolen in the robbery was recovered undamaged.

Out of the above factors, His Honour rejected your claim of not planning and executing the armed robbery and returning the vehicle stolen in the robbery undamaged. Consequently, His Honour found these factors against you in addition to other factors such as, this was an armed gang robbery case. At the same time, the learned trial judge accepted the fact of your guilty plea and being a first time offender as factors operating in your favour. We note that you do not take any issue with this. Your only concern is that, the learned trial judge did not take into account the factors operating in your favour.

The records of the proceedings reveal that neither you, nor your lawyer informed the learned trial judge of the alleged assault on you by police. Understandably therefore, the learned trial judge makes no mention of this factor. Logically, he could not be expected to take into account the matters that were not put before him. Indeed a trial judge can not take into account anything that is not put before him or her, because to do so would amount to an error that might form the basis for an appeal.

In the end, we are not satisfied that the learned trial judge fell into any error when he treated the factors for and against you in the way he did. We therefore, find that, this ground of appeal is without merit. Accordingly, we order a dismissal of this ground.

Sentence Excessive

This leads us to your final ground of appeal. For this ground, your argument is that, the sentence of 5 years in hard labour is excessive. You go on to argue that, you would have been content if that sentence was wholly suspended, by reason of your guilty plea, being a first time offender and that police already punished you by assaulting you.

An examination and consideration of the circumstances in which you committed the offence, the factors both for and against you and our decision in relation to your earlier grounds of appeal is required. It also requires a consideration of the kind of sentences that are being imposed in cases similar to yours. We start that process by noting that, the only factors operating in your favour are your guilty plea and being a first time offender. Against that is the fact that this was a case of two armed robberies with actual physical violence against two different victims by a gang. You were armed with one home made shot gun and two bush knives. These weapons were used against your victims. You stole a number of properties belonging to other people including a motor vehicle. One of the robberies involved a waking up of your victim who was asleep in his home, and causing him to open up his canteen for you to steal its contents, which you did.

The offence of arm robbery is defined and its sentence is prescribed by s. 386 (2) of the Criminal Code. It carries a maximum of life imprisonment. But this Court prescribed some guidelines for sentences in armed robbery cases in Gimble v. The State.[3] These guidelines allow for sentences of up to 7 years at the top end for robbery of a dwelling house and 3 years for a robbery on a street at the lower end. These are for cases of guilty pleas by first time young offenders with no aggravating features. The actual sentence in anyone case may be over or below those recommended.

Subsequently, these guidelines have been varied by this Court in Tau Jim Anis & Ors v. The State[4] particularly in the recommended sentences for each of the categories. This has seen an increase from 7 years to 10 years for robbery of a dwelling house at the highest, representing an increase by 3 years. Similarly, the other categories of the offence of arm robbery were increased by 3 years. This means the recommended starting sentences for armed robberies on a street saw an increase to 6 years from 3 years. This was influenced by this Court’s earlier judgement in Acting Public Prosecutor v. Don Hale.[5] But a month earlier on the 2nd of April 1998, this Court in Hawai John v. The State,[6] considered a sentence of 8 years on a guilty plea was too lenient. That was on appeal by his accomplish who also pleaded guilty and was given a sentence of life imprisonment. That sentence was reduced to 15 years on appeal. The reduction was on the grounds of a huge disparity in the sentence between the appellant and his co-offenders. Otherwise, the Court found that the offence was most serious because it was a planned robbery carried out with reckless disregard for others using firearms resulting in one of the victims of the offence being rendered blind.

That case was a robbery on a street, which falls in the last category under the Gimble v. The State.[7] In that case, the victim was transporting in a company vehicle bags of money in cash totalling K1798 and cheques totalling K215,000. The appellant and his accomplishes followed the victim and shot into the windscreen of the vehicle on the driver side. That injured the driver rendering him totally blind. The cash was distributed while the cheques were destroyed.

Since than, there has been a range of varying sentences but mainly over the 7 years mark on guilty pleas where there has been threats or actual violence have been use with the use of firearms or other dangerous weapons.[8] The clear conclusion from all of these is that, the sentence you received is well below the current tariffs. We are most surprised that the Public Prosecutor has not cross-appealed against the sentence. If there was a cross-appeal we would have no hesitation in increasing the sentence to a term in excess of 10 years, given the factors in aggravation. Thus, we are of the firm view that, your claim of the sentence of 5 years being excessive is without merit. Accordingly, we also order a dismissal of this ground of your appeal.

The Appeal

All of your grounds of appeal being dismissed, you are left with nothing to stand on. Hence, we order a dismissal of your appeal and confirm the sentence of 5 years in hard labour imposed against you by the National Court.
________________________________________________________________
Lawyers for the Appellant : Appellant in Person.
Lawyers for the Respondent : The Public Prosecutor

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^[1] [1990] PNGLR 206.
^[2] (Unreported judgement delivered on 13/12/00) N2038. See also The State v. James Gurave Guba (19/12/00) N2020 and The State v Peter Yawoma (Unreported judgement delivered on 19/01/01) N2032.
^[3] [1988 – 89] PNGLR 27.
^[4] (Unreported judgement delivered 25/05/00) SC642.
^[5] (unreported judgement delivered on (27/08/98) SC564.
^[6] (unreported judgement delivered on 02/04/98) SCR 09 of 1995.
^[7] Supra note 3.
^[8] See for example The State v Gilbert Peter Diga (unreported judgement delivered 17/04/00)N1991 (7 years); The State v. Danny Pakai (unreported judgement delivered 17/12/01) N2174 (8 years); The State v. Kennedy Arus (unreported judgement delivered on 16/03/01) N2081 (8 years); The State v. Fabian Kenny (unreported judgement delivered on 16/05/02) N2237 (9 years);The State v. Collin Amoko (unreported judgement delivered 18/04/02) N2214 ( 10 years); The State v Jamie Campbell Fereka (unreported judgement delivered 07/04/03) N2359 (12 years); The State v. Lucas Yovura (unreported judgement delivered 29/04/03) N2366 (12 years); The State v. Vincent Malara (unreported judgement delivered 20/02/02) N2188 (15 years with prior conviction).